In Re the Last Will & Testament of Belcher , 66 N.C. 51 ( 1872 )

BoydeN, J.

There were only two questions made in the argument of this case.

1. That the will attempted to-beset up by the propoundcr was different in form, from that found by the jury.

2. That the petition of the propounder alleged, that the will had three subscribing witnesses; and that this being alleged in the petition, all the three witnesses, should have been called, or their absence accounted for.

The Court is of opinion, that the will as found by the jury is in substance the same as alleged in the petition.

True, it has the form of a deed; but it was proved that the will was made the when the testator was inojps consilli and that the draftsman was requested to write a will, and in the instrument the operative words are, “ I do give at my death.”

The jury have found this- to be a will. In the case of Habergham vs. Vincent 2nd, Vesey Jr., 204. Justice Butler at page 330 of the case, says, “ that the eases had established, that an instrument in any form, whether as a deed-poll or indenture, if the obvious purpose is, not to take place till after the death of the person making it, shall operate as a will. The authorities for that are both at law and in equity. In one of the cases there were express words of immediate grant, and a consideration to support it as a grant, but as upon the whole, the intention that it should have a future operation after his death, it was considered as a willB

In the ease of Jack v. Henderson, 1 Deans, 554, it is said, “ that a will may be ¡nade in any form provided the formalities required by law be complied with. It may be in the form of a deed of gift, provided, it is the intent of the testator that it should operate after iris death. Thwold vs. Thowld 1, Phill 1, and cases cited.” The case of the executors of Henry vs. Ballard and Slade, 2 Carolina Repository 295, decides that the paper propounded as a will, though in the form of a deed, as in this case, yet as the instrument of writing was made with a view to the disposition of the estate, after the death of the maker, and although the testator was advised to make a deed, yet the whole structure and operation showed it to be a testamentary paper. The other point as to a third subscribing witness, who was not called at the trial, nor his absence accounted for, it is sufficient to remark that the verdict oí the jury has precluded that question ; as they have found that there were in fact only two subscribing witnesses, but if it were not so, the caveator conld not avail himself of this objection, in the manner attempted in this case.

There is no.error. This will be certified that such other proceedings may be had as the law requires.