
    Felix Houston and wife vs. James R. Houston.
    A will of personal property takes effect from the time of the death of the testator, and mast be executed according to the laws existing at the time of the death.
    
      Quere, if on qijestionsas to the execution of Wills of real estate, relation must be had to the time of execution, of whether it must be governed by the laws existing at the time of the death of the testator?
    J3y the act of 1824, Wills of personal property as well as real property are required to havethree or more witnesses.
    ' Tried before Judge Huger, at Abbeville District, Spring term, 1826.
    This was an appeal from the decision of the ordinary <»f Abbeville District refusing to admit to probate a paper offered as the last will and'testament of A. Houston, deceased, This paper was dated the 14th day of December, 1824', and was in form of a Will signed by the said A. Houston, but was not subscribed by any witness. A. Houston, the testatrix, died m the month of September, 1825. The ordinary decided that this was not a good Will, as it had not the number of witnesses required by the act of 1824, notwithstanding the paper had been signed before the passage of that act.
    The appeal from the ordinary was on the following ground viz : that as the Will in question was dated before the first day of May, 1823, and before passage of the act of 1824, it was not governed bj' that act, but was a good will, without witnesses, to dispose of personal property, and ought to have been admitted to probate.
    These facts were set forth in the pleadings, and the question of law submitted to the court was whether, under the circumstances, the paper in question was a good Will.
    The court decided it was not.
    From this decision the appellants appealed to this court, and moved to set aside the decision made by his ho-nour, on the circuit, and relied on the same grounds as set forth in their appeal from the ordinary.
   Nott, 3.

This case has been submitted to the court without argument or authority. But the court is satisfied with the decision of the court below. A distinction has always been made between a Will by which land is devised and a testament containing bequests only of personal property. A devise of real estate is considered in the. nature of a conveyance, and therefore can only operate upon lands of which the testator is seized at the time of executing the Will, (Roberts On Wills, 295-6-7 Richardson, Do. 57.) It would seem therefore that in the construction of such an instrument, relation must be had to the time of its execution. And yet even in that case I am not prepared to say, that so far as regards its execution, it must be done according to the existing law at the time of the testators death.

Saxon, for the motion.

Me Craven, contra.

But with regard to bequests of personal property, mens ambulatoria est usque ad mortem. The Will takes effect from the time > f ¡.he death of the testator without regard, to the time of its execution. Goods and chattels therefore which he has at the time of his death will pass under it, although he did not possess them at the time of making the will; because they go to the executor, and pass not by the Will but by his assent, to whom the Will is only directory. (Richardson, 57. Banter vs. Coke, 1 Sal , 237.) If therefore a will is not considered as having existence until the death of the testator, it must be executed according to the law at the time; and this Will, not having been executed according to the provisions of the act, which was passed previous to the death of the testator, is void and of no effect.

The motion must therefore be refused  