seventy-nine, at $1,000 00, or lots of land numbers
one hundred and seventy-nine, one hundred and sev-
enty-eight, one hundred and sixty-five, and one hun-
dred and sixty-six, at a fair valuation, said lots lying
in the fifth district of Randolph county;" and the
son died, leaving M., an infant daughter, his only le-
gal representative. The four lots of land were ap-
praised to be worth $2,400 00. The guardian of M.,
the infant child, with the assent of the executor of
the testator, elected to take the four lots of land at the
appraised value and went into the possession thereof
in her right, and is now in the possession of the same.
The executor filed a bill for direction, alleging that
the words of the before recited clause of the testator's
will, and the directions contained therein are so con-
fused and unintelligible as to render a construction or
safe execution thereof impossible by him, as executor:
Held, That neither the allegations in the complainant's
bill, nor the evidence contained in the record, makes
such a case as entitles the executor to interfere with
the rights and interests of M., the infant ward, in the
four lots of land which she, by her guardian, elected
to take, under the will, at a fair valuation, and did
take, with the assent of the executor. Jourdan vs.
Miller ......

2. The will, in this case, shows upon its face that the
testator made it in contemplation of the birth of a
child or children to him, subsequent to its execution,
and the Court erred in instructing the jury to find
a verdict setting it aside, because such provision was
not made. Freeman vs. Layton and wife........
3. An instrument in writing executed by B., in the form
of a deed, was offered in evidence as a deed, which was
objected to on the ground, that no present interest in
the property was conveyed by it, and it was therefore
a testamentary paper, and not a deed. The instrument
contains the following words: "I give and devise
unto them (his three sons) and their heirs, the follow-
ing property, all my estate, both real and personal,
consisting of lands, money and evidence of debt,
horses, cattle, hogs, and all other stock of all descrip-
tions that I may die possessed of, to them and their
heirs," etc.:
Held, That this was a testamentary paper, and not a
deed; that no present interest in the property was con-
veyed under it, but only such of the described pro-

perty as the maker of the instrument should die possessed of was conveyed by it. If he was possessed of all the property mentioned in the instrument at the time of his death, then it would have passed under it if legally executed, but if he was not possessed of all, or any of the described property at the time of his death, then none of it would have been conveyed to his three sons. The instrument conveys only such of the described property as the maker thereof "may die possessed of." No present interest in the property was conveyed to the sons, and until the death of the maker of the instrument, no one could know what portion of the property described therein he would die possessed of; consequently, the instrument conveyed only such portion of the described property as he might be possessed of at the time of his death, and is, in law, a testamentary disposition of the property, to take effect at the death of the maker of the instrument. Brewer vs. Baxter et al. ... 4. F., by the first item of his will, bequeathed a lifeestate in certain lands to his son, and, subsequently, by a codicil thereto, withdrew said property from the provisions of his will, and divided it equally and absolutely among his children, and the property given to his son by the codicil is given absolutely, without any referential or substantial words carrying it back, under the provisions of the first item of the will, but the devise of the codicil is complete and separate, and the terms used plain and unambiguous:

Held, That the son took an absolute estate in said property under the codicil, and that the law inhibits the construction of lesser estates, where no words of limitation are used by the testator, and where no such intent appears, by clear and necessary words in the instrument. Felton vs. Hill et al.......

5. In the construction of wills, the mode of ascertaining the testator's intent, is not by arbitrary conjectures or opinions as to what he meant, but it is to be drawn from the whole instrument, under rules of law. Ibid. 6. Where the testator, by the third item of his will, gave all his property, not otherwise disposed of, to his children, to be equally divided between them, and, in the concluding paragraph, imposed the same restrictions and regulations contained in the first item, and the first item bequeathed a life-estate, and also contained

212

554

restrictions and regulations for the protection of each life-estate:

Held, That neither by the language used, nor by a legal interpretation of the testator's intent, will the property thus given, absolutely, be reduced to a life-estate. The testator has not so declared, and the restriction and regulation imposed cannot be held to diminish the fee. The protection of the law invoked for the preservation of the estate given is consistent with such estate, and Courts will not supply words to support a construction of intention to give a lesser estate, where the words employed in making such bequest are without limitation. Ibid.

Ibid.

7. Upon the death of the two minors, who took under
the above item of the will, their brother of the half-
blood took, as heir-at-law, the share he was entitled
to in their several estates, and his daughter now takes,
as the heir-at-law of her father, whatever he would
have been entitled to in the preraises.
8. In the property withdrawn from the first item of the
will and disposed of under the second item of the
codicil, the children of Shadrach R. Felton, all took
an absolute estate, and the imposition of a trustee,
under the third item of the codicil, did not diminish
such estate, but was within the intention of the testa-
tor, the better to secure it for their enjoyment; and
one of said children being of age, did not defeat the
purpose of such trust; and in such estate, if not dis-
posed of during the lifetime of John Micajah, his
daughter was entitled to his share therein, as his heir-
at-law at his death. Ibid.

9. Where the testator signed his will below the attesta-
tion clause, and the Court charged the jury that, if it
appeared that the will was signed by testater below
said clause, and if the jury believed from the evidence
that it was so signed by testator, with the intention to
sign it as his will, then, in law, it was a good signa-
ture of the will:

Held, That such charge was correct, under section 2379 of the Code of this State. Huff vs. Huff... 696 10. When the testator went to the warehouse of certain parties for the purpose of executing his will, and two of the witnesses were present, and one absent, and, after waiting some time, one of the parties remarked to the testator, as A came in, that he would answer as

well, and testator was introduced to A by B, and B remarked at the time that testator wanted him to witness his will, and they all went to a desk and executed the paper; and under these facts, the Court charged the jury, that if they believed from the evidence that one of the witnesses was suggested to testator, and testator assented to such suggestion, such assent was, in law, a request, or equivalent to a request:

Held, That such charge by the Court was not error; that the law provides no special formalities about the witnesses to a will; it is sufficient if they attest and subscribe the will in the presence of testator; the law implies the request in the consummation of the act, and no special request by the testator is necessary. Ibid.

11. Where a witness to a will was not acquainted with testator before the execution of the will, and the Court was requested to charge the jury, that if the witness knew nothing of the testable capacity of the testator, he was not, in law, an attesting, though a subscribing witness, and the will in that case was void, the Judge replying, "that is the law;" but also added, "I charge you, that if he was introduced to him and looked at him, the law implies he knew whether or not he had testable capacity."

Held, That the word attest, in the Code, does not imply relation to the capacity of the testator. Attesting means witnessing, and subscribing, that such witness shall sign. The factum of the execution being the object of such attestation and subscription, the inability of such witness to testify to the mental capacity of the testator, did not render the will void, but only went to the credibility of such witness, in case he was called on to testify about the sanity or mental capacity of the testator, and the Court ought to have refused such charge as it is not the law. Ibid.

12. Held again, That the addition of the Judge to the charge under the facts of this case was not material to the issue involved in the trial, and only expressed what is a plain principle of law, that all men are presumed to be sane, and being introduced, and seeing testator could only strengthen the presumption. Ibid.

WITNESS.

1. In a suit on a partnership contract against the admin-
istration of a deceased partner and the surviving part-
ner, the other party to the contract may, notwithstand-
ing the death of one of the partners, be a witness, if
it appear that the contract was made with the surviv-
ing partner, or with both the partners actually pres-
ent and engaging in the transaction, and this is es-
pecially so if the surviving partner has himself been
sworn as a witness. McGehee vs. Jones et al... 123
2. If a woman cohabit with a man, under his promise
to marry her legally, but finding that he does not
take legal steps to do so, quits him and again cohabits
with him, she is not his wife and is a competent wit-
ness on his trial for crime. (R.) Hill vs. The State. 48!
3. In cases where the plaintiff or defendant are wit-
nesses for themselves, their interest goes to their cred-
ibility, to be judged of exclusively by the jury.
Brown vs. Reid & Company....

.... 604
4. An action for divorce was brought by the husband
against his wife, alleging as a ground for divorce, the
willful and continued desertion of the wife for the
term of three years:

Held, That the husband was a competent witness on
the trial thereof, under the provisions of the 3798th
section of the Code; but he could not testify as to
any facts derived by him from the confidential rela-
tion of husband and wife. Castello vs. Castello........ 613

WORDS.

See Criminal Law, 2, 20, 21.

"Slander.

(6 Wills 11.

"Garnishment, 1.

"Homestead, 3.

WRIT OF ERROR.

See Bill of Exceptions.