#### John Robertson *v.*Robert Dunn.

I From Wake.

.If it appear doubtful from the face of an instrument, whether the person executing' it intended it to 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 shewing how such person really considered it.

The only question in ibis case was, Whether the following was to be considered as a testamentary paper, or a deed of gift. The paper was written by Joseph Fowler, at the request of Lucretia Robertson, who told him at the time, she wished him to write a deed of gift. After she had signed it and it had been attested, she requested one of the witnesses to attend at the next Court and prove it, that it might be *recorded;*and she said at the time, that none of the persons to whom she had given any of her proporty were to have it until after her death.

“ 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 X have and bear for my beloved children hereafte; named, 1st. I give and devise to my son Needham Robertson, one negro man Essex, one negro girl named Martha, two feather béds, steads and furniture, and one horse, to be possessed after my death, 2dly„ I give to my daughter Nancy Dunn, one negro man named Mason, one feather bed and furniture, to be possessed after my death, odly. I give to my son Thomas Robertson, one negro "girl named Charity, to be possessed after my death. 4thly. 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 16th day of January, 1805.

«LUCRETIA ROBERTSON, (Seal.)

« Teste, Jo. Fowkeb,

Leo’d Cooke.”

Hall, Judge,

delivered the opinion of the Court:

If it appear doubtful, from the face of an instrument, whether the person executing it intended it to operate as *134a *deed*or a *xoill,*it is proper to. ascertain the intention of such person, not only from tiic contents of such instrument, but also from evidence shewing how such person really considered *it*— (Powell *on Devises*12, and the cases there cited.) In the first part of tiie instrument before us, 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. Si>c 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 ia hey to make a will. But when we reflect upon the testimony adduced to shew 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 j 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 shew the light in which she herself viewed the transaction, tlie *135•ifrstrument must be considered as a deed, and not as a testamentary paper.