| N.C. | Jan 5, 1812
To all to whom these presents shall come — Greeting:
Know ye, that I, Lucretia Robertson, for and in consideration of the natural love and affection which I have and bear for my beloved children hereafter named, (1) I give and devise to my son Needham Robertson one negro man Essex, one negro girl named Martha, two feather beds, steads and furniture, and one horse, to be possessed after my death. (2) I give to my daughter Nancy Dunn one negro man named Mason, one feather bed and furniture, to be possessed after my death. (3) I give to my son Thomas Robertson one negro girl named Charity, to be possessed after my death. (4) All the rest of my estate that I may die possessed of, I give to my three sons, Christopher, Herbert and John Robertson. In witness whereof, I have hereunto set my hand and seal, this 16 January, 1805.
LUCRETIA ROBERTSON. (SEAL.)
If it appear doubtful from the face of an instrument whether the person executing it intended it to (134) operate as a deed or a will, it is proper to ascertain the intention of such person, not only from the contents of such instrument, but also from evidence showing how such person really considered it. Powell on Devises, 12, and the cases there cited. In the first part of the instrument before us, *105 Lucretia Robertson gives to her son Needham several articles, which, however, she directs he shall not be possessed of until after her death. In the second clause she gives other articles to her daughter Nancy, with a similar direction; and in the third clause the same precaution is used. All this precaution would be useless in a will, which cannot take effect until after the death of the testator. In the fourth clause she gives all the rest of her estate that she may die possessed of to three of her other children. There is nothing in this clause indicative of the way in which she intended the instrument to operate; for whether the property given by it be a gift or a legacy, its quantum is referable to her death, and cannot be ascertained before. It is to be observed, however, that in the first part of the instrument she expresses that the gifts are made in consideration of love and affection for her children, which expression would be unnecessary in a will. She appoints no executors, nor does she use any words commonly used in last wills, except in the first clause, where she uses the word devise. Nothing more than this slight circumstance can be collected from the writing itself evidencing a disposition in her to make a will. But when we reflect upon the testimony adduced to show what she herself considered she was doing, there can be little doubt. She called upon one of the witnesses to write her a deed of gift, and directed him to have it recorded at the next court, which she would not have done had she believed she was making her will. The person who wrote it considered it to be a deed of gift. From the evidence furnished by the deed itself, as well as from that produced to show the light in which she herself viewed the transaction, the instrument must be considered as a deed, and not as a testamentary paper. (135)Teste: JO. FOWLER, LEO'D COOKE.
Cited: Davis v. King,