
    Joseph Brown vs. R. Shand.
    There is no precise form of words necessary for a will of personal pro perly, bn whatever form be adopted, it must always be made to ap P'-ar that be intention of the testator vas./ftcetf anti determined.
    
    
      An appeal from the Ordinary of Charleston district.
    In this case, it appeared that, Robert Haig died, leaving-three testamentary papers.
    The first was dated in 1810, and was signed and sealed by the testator, and attested by three witnesses. In this will, by which the whole of his property was disposed of. Whitford Smith was left a legacy of $ 500, and was appointed an executor with two others.
    Some time after the execution of this will, Haig became dissatisfied with the conduct of Smith, and mentioned to one or two of his ft iends that he would alter his will; and to one that he had altered his will, in consequence of the ill conduct of Smith. He further stated, that he meant to provide for Mary, (his slave,) and her children.. In pur*-suance of this intention, and before April, 1813, he drew tap instructions, from which he said another will should be drawn. These instructions were in his own hand-writing, but were neither signed, sealed,nor dated; and no mention is made of Smith, either as legatee or executor. At the bottom of the page on which the instructions were written, and where the testator’s name is usually signed, after “ my executors,” are written three names, only one of which is found in the will of 1810. By this memorandum, his u real and personal property” were mentioned. A Mr. Brown was requested by Haig to draw a will in conformity to the instructions, which was accordingly done on the 21st of April, 1813. This paper was not signed; the usual words of attestation were added, but not subscribed by any witness.
    On the back of this paper, and in the hand-writingof Haig^ 'was commenced another will, in the following words :
    “ The last will and testament of Robert Haig, of the city of Charleston, State of South-Carolina, carpenter. I will and bequeath to my beloved niece Mrs. Lackey, 250 shares in the Union Bank.” Nothing more was added.— This legatee got nothing by the first will, and only 200 shares by the memorandum, and the will drawn by Brown,
    
    
      
      Evans, one of tbe executors nami d in the memorandum, and in the will drawn by Brown, %vas with Haig when he dud, and for some days before. He (Evans,) represented Haig as very feeble on the day before lie died, but in his senses. When asked on that day to sign the will, drawn by Brown, Haig replied, “ to-morrow.” When interrogated about the distribution of his property, he said, he wished to leave something to charitable societies, naming two. Neither of these societies were mentioned in either of the wills, or in the memorandum. It did not appear that the testator left any real estate.
    The Ordinary decided in favor of the second testament tary paper, (the memorandum of instructions.) '
    On an appeal to the Circuit Court, his decision was reversed, and the first will established.
    A motion was now submitted to reverse the decision of the Circuit Court.
   Mr. Justice Huger

delivered the opinion of the court.

There is no precise form established for a will of personal property, but whatever form be adopted, it must always be made to appear that the intention of the testator was fixed and determined. In the language of one of the elementary writers, (1 Swinburne, 12,) referred to, it must be complete and perfect, and not left unfinished, to be completed at another time. The preservation of the will of 1810, the declarations of the testator, that he intended the memorandum as something from which a will was to be drawn, the non-execution of the draft which was always in’the testator’s power from 1813 to 1819, when he died, the commencement of another will on the back' of the draft in his own hand writing, nearly as variant from the memorandum as the memorandum was from the will of 1810, Ills declarations even as late as the day before his death, that he intended to leave legacies to two charitable societies not mentioned in his memorandum, are facts that fully authorize the inference, that the intention to establish the memorándum, and to revoke the will of 1810, wars ne* ver fixed and perfect, although the testator may at tíme.; have thougbt'of doing so. The cases from Phillemore, a:-; well as all the other cases referred to by the appellant’:; counsel, only shew that from different facts, a different conclusion has been drawn, In most of them, death followed so soon after the issuing of instructions, as not only to have prevented the execution of the wills, but to have excluded the probability, if not the possibility of the testator having changed his mind. He would have signed had he lived, is the irresistable inference in each ; but what becomes of this inference, when six years intervene between the completion of the draft, and the death of the testator ? I think, reversed, he would have executed it, had he approved, is at least an authorized presumption, in the ease of Walker vs. Walker, (1 Merivale, 503,) a testamentary paper formerly drawn, signed and sealed, hut which had words of attestation and no witness, was ruled to be no will; because, from the words of attestation, it appeared that the instrument was intended to have been witnessed, and as it was never witnessed, the intention had never been complete and perfect. This case goes very far; further, Í think, than I should be disposed to go ; hut should a jury so decide, I should not feel myself authorized to say, they were wrong.

The motion is refused.

Justiéen Bay, Non and Johnson, concurred.

Mr. Justice Gantt

dissenting, delivered the following opinion;

I dissent from the opinion delivered in this case, on the ground, that the decision made by the' Ordinary in favor of paper B. as the last will and testament of Robert Haig, in opposition to the paper A. was strictly correct and legal. Paper B. was written, as appears by the evidence, after that of A. had been duly executed. It was in the handwriting of the testator himself, and as the last will governs, the former testamentary paper A. was ipso facto, revoked. Nothing remained to he done by the testator to per-Ibct-lb’e paper B. as his will. li the intention of the testator was kit equivocal, after an act so plainly demonstra' live of a revocation of the paper A. as was evidenced bv the paper B, the declarations of the testator were sufficient to remove all doubt. He said to Elfe, that he had made a new will, and that he had left out Smith, who had been named executor in his former u ill, with other declarations, shewing that the new will alluded to, was the paper B.-~ Thus considered, I think paper A. was legally revoked by the act of the testator in writing paper B. and declaring as be did, the latter to be ids will. The doubt which the case affords, in my opinion is, whethir the paper B. war. revoked in turn by paper C. Now I lay no stress upon the circumstance of this paper C. having remained fora considerable time in the possession of the testator unexe-cuted as he intended, to-wit, by the. attestation of witnesses. Those were unnecessary formalities, (being ol' per- . sonal estate.) The'day previous to the testator’s death, he declared C. to be bis will, and that be meant to execute it the next clay. He was prevented by the act of God from completing his intention, and this circumstance from the authority of the case quoted from Phillemore's Reports, 72, gives efficacy to the intention of the testator, and would establish the paper C. as his last will and testament; and this intention ought injustice to be carried into execution, where it can be done consistent with the rules of law. 3 am inclined to think that C. might have been considered without any violation of legal principies as the last will and testament of the testator. But ii it could not, then the paper B. remained of force and unrevoked. 'Whether the paper B. was revoked by that of C. is rendered doubtful from the circumstance that the testator declared an intention of doing a farther act before C. was to be considered as complete. Admit therefore that the latter was not perfected according to law, then D. remained unrevoked and of force. I am inclined however, upon the. whole oi the caseto consider the paper B. and the memorandum on the back of C- all in the band writing of the testator himself, as constituting bis last will and testament. The design of the testator in the memorandum alluded to, was merely to enlarge a bequest given by the paper B. and whilst it affords additional evidence of the revocation of A. is a tacit recognition (hat 33. was designed as his last will and testament. In thus hastily declaring my dissent to an opinion otherwise unanimous, I am free to acknowledge the distrust I entertained as to its correctness; but believing that I have tbe sanction of law for its support, I should be unfaithful to myselí to withhold the expression of mj< opinion.  