*<Present*— Chancellors Mathews and Rutleuoe,

#### James Jacks and wife *vs.*George Henderson.

Sept. 1797.

CASE CXI*.

decree book, vol. ii. p. 45.

A native of Scotland, enjoying some estate there, being about to come to Carolina, to take posses, sion of an estate there, executed a paper, which charactci-L tics ofa deed, á will, which was recorded in Scotland by his proc-*544rence to his intended Seafckents it exposed the* fcduce-ments to its in-order0'to prevent disS&SSE He arm ed safe m Carolina, *lived*a number ot ried a lady °tunem<and" died without TitPnScourt was of opi-eveu if the jjePc'n--idei° ed as a wdi, the a.sposi-tions 01 it were merely aPcTVco" dn-gent; cud the (to'vrf^hls death beil’-e eLSna) not having- hap-P 6H Ctl t.1'1 S dispositions of the estate cannot take effect, at th?prej'udic* of the wife Tights. lieí

*543The bill states that in the year 1789, the complainant Ann, intermarried with George Wilson, then lately from Great Britain. That she was possessed of a number of negro slaves and other property, of which said Wilson possessed himself, and appropriated to liis own use. That sometime in the year 1791, the said Wilson died intestate, leaving no issue or relation in the state, That said Ann being then under age, John Withers, her brother, administered on George Wilson’s estate, duly returned an inventory and appraisement, and with permission from the ordinary, sold the same at public auc- ,. i , i . _ , . * non, and said Ann purchased thereat negroes and other property to the amount of 912?. 7s. *6d.*for which, accord*544*ing*to the conditions of sale, said Ann was to give a bond and mortgage: but said administrator having dioses in action of said estate to a considerable amount, more than sufficient to pay its debts, and leave a large balance; and knowing that according to law, the said Ann was entitled to one half of the residue, never demanded her bond and mor^3'aS’e> being willing to leave the same in her hands as part of her distributive share, and accordingly deliver-^10 same her, debiting her for the amount. That affairs continued thus until the defendant arrived from Great Britain, and produced a writing said to be signed by said George Wilson, under which he pretended to claim said Wilson’s whole estate. That said administrator suspecting the authenticity of such paper, applied to counsel, and received for answer, that no court would permit the widow of said Wilson to be ousted of her dis-r , tributivc share, by a paper of so doubtful a complexion; whereupon the said administrator gave defendant notice he would contest his claim. That all he wished was to secm'° bis sister Ann one half of the personalty of said Wilson, and her dower in the real estate. That if the defendant would agree to settle all matters by an equal division of the estate after payment of debts, he would volease to him his administratorship. Tiiat defendant C0Ilscn^ t° bis offer» and agreed to convey and secure to said Ann one half of the personal estate of said Wil-s £0 ,ni); ]ier jn t]ie same situation as if said Wii- ’ *1*son had died intestate; whereupon m order to bind lnm-SC|ff -<> said agreement, said Henderson entered into a certain bond to that effect. That in pursuance of said agreement, the said administrator released to said Henderson the administratorship, and made no opposition to his proving said paper as a will, as executor. That said Withers also delivered up to defendant dioses in action *x*to a large amount, being the whole of said Wilson’s per» sonaj estate: and defendant has ever since acted as sole executor, and received divers sums of money which he bath applied to his own use. That at the time or soon after the completion of said settlement, said complainant, Ana executed to defendant a bond for 45fiL S.<?. *9d*bring *545the amount of half her purchases, and gave a mortgage of sundry negroes as a further security; but charges that the same was given merely for securing one half of the purchases to defendant in case he should not be abb*, to recover so much money on account of said estate; and defendant when she was about to execute said bond premised he would apply one half of the monies he should receive on said estate to the discharge of said bond and mortgage.

The bill charges that defendant hath received divers sums of money of said estate, but instead of applying them to the debts ox the estate, and then one half of the balance to satisfy complainant Ann’s bond and mortgage, hath placed said mortgage in the hands of the slier;T of C. T. D. to seize said negroes and sell them to satisfy the same.

The bill prays that defendant account for all money received by him for said estate; and if it should appear that he has been guilty of a devastavit, that he may specifically comply with the condition of his said obligation; and after paying the debts of said estate to give credit on the obligation of said Ann for one half of the balance; and to be restrained from selling the negroes under the. mortgage. And that the agreement or compromise, may be confirmed; and one half the estate be secured to the complainants.

The answer of George Henderson admits the marriage of complainant Ann with said Wilson. That he died at tlic time mentioned in said bill, hut not intestate. He admits the administration and sale by John Withers. Admits his own arrival and production of the paper in bill mentioned (see exhibit A) whereby defendant is made sole heir and executor of said Wilson. Admits tixat on producing said will, the administrator and complainant Ann, were disposed to give him trouble; and being informed that by law no property «after making a will would pass, and thinking it reasonable some provision should be made, for the widow, it was agreed, as stated in bill. That the administration of said Withers was rc-voked — the bond as mentioned in bill given by complain. *546ant Ann to him, and he qualified as executor. Admit» he has placed the mortgage in the sheriff’s hands; hut previous thereto applied to complainant Jacks for payment of so much of the bond as he was in justice entitled to receive, assuring him that the debts and legacies on the estate were so large as to absoi'b the whole estate within 4001. or 5001. and offered to shew him vouchers to prove the same; hut said Jacks refused to examine them, and put defendant at defiance, and insisted that defendant should pay out of his moiety, the debt due from said Wilson to his father in Scotland, and also all the legacies; which is unconscionable; as by the operation of the will, the whole personal estate became the property of defendant, inasmuch as said Wilson died before the law took effect which enacted that property acquired after the making of wills, should not pass thereby. Defendant denies he has received large sums of money. On the contrary he has made considerable payments of debts, and is anxious to close the same, and would have done so, had the complainants settled with him. Denies he had any power from the legatees of said Wilson to compromise their rights, or had an idea of relinquishing the smallest part. Believes the claims set up under said will are well founded, and knows of no discount against them; nor that said will was ever revoked. That he has no interest in said legacies; but means to pay them to the utmost, and is ready to come to a fair settlement.

The paper relied upon by the defendant as the will of George Wilson, the first husband of Mrs. Jacks, was executed by him, in Scotland, before he came over to this country and married her. On the face of the recorded copy it is stated, that on the 25th May, in the year of our Lord 1792, James Boss, writer in Perth, proctor for George Wilson, appeared in the presence of David Smyth, esq. advocate, sheriff depute of Perthshire, and gave in a disposition and deed of settlement after inserted. The deed was executed on stamped paper; and he desired the same to be registered in the sheriff’s court books, which was done accordingly; whereof the tenor follows. The paper recites that the said George Wilson being th® heir *547•of Dr. James Crockatt of South-Carolina; and that having arrived at the age of majority, and proposing to leave Great Britain and reside in Carolina, and take possession of the estate and effects of his late uncle, in Carolina; but that as many accidents might occur to prevent the execution of his design, he resolved by a general deed of settlement to pi-event any disputes that might arise concerning the estates heritable and moveable in case of his death; and therefore under the conditions and provisions therein mentioned, he sold and disposed to himself am the heirs of his body, all the lands, debts and sums of money, heritable or moveable, that should belong to him at his death; and particularly (without prejudice of this generality) the balance of the price of the lands of Colholl, sold by him to “William Mercer, of Air; and also all the lands in South-Carolina, which belonged to *Ms*deceased uncle, Dr. James Crockatt, with the slaves on the plantation, &c. — and all other lands and plantations in that or any other province, country or kingdom that might belong to him at Ms death, in any manner or way. And on failure of his own issue, he disposed, sold, &c. the said property to his nephew, George Henderson, and his issue; and on their failure with limitations over to other relations. And the said George “Wilson in said deed, bound and obliged himself to procure the rights and securities relating to the said lands and subjects thereby disposed of, agreeably to the laws of the country where they lie; and to grant, subscribe and deliver all such writings and securities proper and necessary for vesting the substitutes abovementioned, in case of his death, to be applied for the ends and purposes therein after mentioned, or such other purposes as he might afterwards order by, or write under his hand. And in the first place for the payment of all his just debts — 4n the second place fox-making effectual an annuity of 20L during his own life, and the life of his father, and the, sum of 5O', in case of Inis death, agreeable to a bond of provision for that purpose by him executed, of that date. And in the third place, for payment of such legacies and provisions as he should make or grant to any friend or relation during *548his life; and in the event of said George Henderson sue-ceeding him, he bound and obliged the said George Tlcn-derson to pay certain sums of money to certain relations wj1()m jie liam3S. And moreover in case of his death without lawful issue, he appointed George Henderson, and failing him, certain others to he his executors and universal legatees' — 'and he made over and conveyed to them successively, in the order set forth, his whole debts, and sums of money, goods and effects that he might die possessed of in Great Britain, or America, or elsewhere. And the said deed is stated on its face to be delivered to the said George Wilson’s father, David Wilson, to he kept for the behoof of all concerned' — 'and he consented that the paper should be put on record in Great Britain or America. And be appointed James Boss in Berth, his procurator. In testimony whereof he put his hand and seal, *before three*witnesses, on stamped paper, on the 4th day of August, 1781.

The following is the substance of the bond mentioned in the foregoing paper:

It recites that George Wilson being about to go to Carolina to take possession of his uncle Dr. J. Crockatt’s property; and that his father, David Wilson being, living *and might by the casualties of life,*be deprived of support, he thought it his duty to grant this present deed. He hinds himself, his heirs and successors to pay to certain persons (whom he names) as trustees, the sum of 20Í. per annum, from a day fixed, during *the*said David Wilson’s life. And in the event of his (George Wilson’s) death, he binds his heirs and successors (named in the paper purporting to he a will or settlement) succeeding to his estate, to pay a yearly sum of *501.*for the use of his said father. It was dated on the 4th August, 1781; and he consented to its registration; and it was put on record in Scotland.

The cause came to a hearing in 1797. It was argued by Mr. Desaussiire and Mr. W. Johnson for the complainants, that the paper in question, executed by G. Wilson in Scotland, could not be considered, or made to operate, as a last will and testament. That it was a mere dócil, *549operating in part immediately^ and snaking a provision for his connexions. It was a family settlement. It has few of the features of a will, and many of a deed. It was executed on stamped payer, which wills were not then required to be in England or Scotland. See William's abridgment. It was put on record, which is nci er done with wills, -before the death of the testator. A paper having a present operation, as this had, in connection with the bond (which mutually refer to each other) cannot be a will. See Swinburne, 55. Dyer, 166. Here was an annuity granted to George Wilson’s father to take effect immediately. To make a paper testamentary, ifc must be ambulatory- — for omne testamentara morte con-summatum est,* et voluntas est ambulatoria usque extre-mum vitoc exitum. 4 Co. 61.b A will or testament is a declaration of the mind in disposing of an estate, to take pla.ee after the death of the testator. See office of executors, 2 vol. p. 7. 5 Bacon, 497. Swinburne, p. 1, § 2 and 4. Carthew, SS, Lea *vs.*Lib. Comyns, 452,3. 4 Barn's. Ecc-1. Law, 95. 2 Lord Ray m. 1282. Powell on devises, 13, 14. The paper having some of the charasteristics of a will, cannot change its essential character, which is that of a deed — And it cannot operate both as a deed, and as a will, for the rules of construction applicable to these two kinds of instruments, are entirely different and even incompatible. Now if this be not considered a will, but a deed, then it cannot operate on any property acquired after making the deed,* and the personal property of Mrs. Jacks cannot be swept away from her by this deed — -Shu would be entitled to a moiety of the real and personal property of her husband, not disposed of, as there were 3io children of the marriage. Her claim is very humble, for she asks only for a moiety of that very property which she earned in marriage to her husband George Wilson. But if this really was intended to be, and must be considered as a last will and testament, it is contended for the complainant, that this paper was a mere provisional will, made on a particular occasion, and was contingent, and became inoperative and void afterwards: and also that if it were a good will originally, it was a*?.*550yoked by subsequent circumstances. Tins is not a nove| idea. In the case of Parsons *vs.*Lance, reported in' Ambler, *557,*and 1 Yesey, sen. 190, it was decided by l01’d chancellor Hardwicke, that a will made on the eve of a journey abroad, was a contingent will, made on a special occasion, and for a particular purpose, and was avoided by the testator’s safe return. The words of the will however were particular — Imprimis, in case I should die before I return from the journey I intend, God willing, shortly to undertake for Ireland, my will and desire is”, &c. &c. The testator was a married man, hut had no children — he returned safe from his journey and had children. He afterwards died without revoking this will. Lord Hardwicke in giving his judgment in the case said, that under such circumstances, no court of equity ■will give, any latitude to support such a will, but will take hold of any words they can, to make it conditional and contingent. He accordingly laid hold of the conditional words in the will, and pronounced it contingent, and avoided by the return of the testator. See also 4 Burr, 3165, Wellington *vs.*Wellington. It might also be fairly contended that the subsequent marriage, connected with the other circumstances, ought to induce the court to consider this as a case of implied revocation. It is time that the decided cases, and our statute, have not yet gone so far as to say that the marriage alone of the man, should amount to an implied revocation of a preceding will, as however is the case on a woman’s marrying — > but the whole doctrine of implied revocations has grown up by degrees. It was a long, time before marriage and the birth of children, were allowed to amount to a revocation of testaments, even of personal estate. The reason and justice of the doctrine afterwards induced its adoption, and its extension to wills disposing of real estate. And wTe see in Lanoe’s case how readily the court seized on any words, to get rid of a will of a married man, in favor of after born issue. So we contend that a will made abroad, having direct relation to the property then possessed by the testator, ought not to he allowed to be set up, after the lapse of many years* against a wife, *551married in another country, to rob her of all the property she carried in marriage. A woman’s will is revoked of course by her subsequent marriage. 4 Co. rep. 60,1. justice requires that the husband’s will, under such cir-eumstances as exist here, ought to he considered as revoked. There is no evidence that the original has not been destroyed. It has never been produced: only an official copy from the record in Scotland, where it was registered by his proctor. Another point conclusive for the complainant is, that the defendant made a written and formal! compromise with Mrs. Jacks, allowing her a moiety of the property she carried in marriage to George Wilson. —the other moiety she abandons to him. And he had a right to do so; for ho is the first taker under the paper,, whether deed or will, executed by George Wilson. He alone is interested to give effect to that instrument; to enlarge its operation, or to limit it. He has done so, and is hound by it. He at least cannot question it. There is no pretence that the property of George Wilson in Scotland, and in tins country, inherited from his uncle, is not sufficient to satisfy the provision for the father under the bond ho gave him, and to pay bis debts.

Mr. Edward Rutledge for the defendant,

argued, that the paper was a will. It gives legacies, appoints executors, and is to take effect after death. These are decisive marks of a will. This has been admitted to be a will, and has been proved as a will by the consent of the complainant, in the court of ordinary. The spiritual court is the proper tribunal to decide on the character and validity of papers set up as wills. See 1 Atk. 560. *7*Brc, P. C. 319. And this is the settled course in this country» The act of 1789 expressly gives the probate of wills to the ordinary, with appeal to the courts of law. Then it has been established as a will, and cannot now be shaken —and we can only look to its operation. It is full and complete, and disposes of every thing which the testator then possessed, or might afterwards acquire. And as the marital rights gave the husband the absolute right of all his wife’s personal estate reduced to possession, the will attaches upon that property, anil disposes of it. As *552to the implied revocation, arising from George Wilson’s subsequent marriage, no case 1ms ever gone so far. None of the English decisions have been carried to that extent: ar¡f] ¿¡ja+ eminent ordinary, Mr. Burrows, of Charleston, decided expressly in Mi*. Hugh Wilson’s case, that marriage alone, without.issue, did not amount to an implied revocation of a prior will. And our statute in providing, that marriage and the birth of issue should amount to a revocation, decides by implication at least, that nothing short of marriage and issue, should have that effect. As to the agreement, the defendant has explained it in his answer; and his answer is not contradicted by any testimony. The compromise cannot affect those in remainder; and G. Wilson’s debts are yet to be paid,

The chancellors took time to consider the case, and afterwards

Chancellor Rutledge

delivered the following decree of the court;

The bill states, that complainant Ann Jacks, then Ann Withers, in the year 1789 married one George Wilson. That he died in 1791, without having either before or after his marriage, as complainants contend, made a will or leaving any issue or relation in this state. That letters of administration were granted to her brother John Withers, who sold the personal estate by permission of the ordinary' — 'And that she purchased to a considerable amount. That some time afterwards, in the year 1794, defendant arrived from Great Britain, produced a certain writing said to bo a will, and signed by the said George Wilson, dated 4th August, 1781; under which ho pretended to claim the whole of the estate, real and personal. That defendant having received notice from the said John Withers of his intentions to contest his claim under that paper, unless he would agree to certain proposals made by said Withers; the said defendant agreed to secure to complainant Ann, one half part of the clear residue of the said Wilson’s personal estate, after paying his debts; and accordingly executed a bond to that effect and for that purpose; in consequence of which the said John Withers withdrew his opposition, and permitted defendant to qualify as executor, and, then gave up to him all *553the bonds, notes and other papers, relative to the said estate. That soon after defendant executed the bond abovementioned, complainant Ann signed one to defendant for 456?. *3s. 9d.*being half the amount of her purchase, and gave him a mortgage for securing payment of the said sum. That the said bond and mortgage were given solely for securing payment of one half of the pur-, chase, in case the defendant should not recover so much money on account of the estate as would be equal to tha amount of her purchase; and that defendant at the time of executing the bond, promised he. would apply one half of all the money he received above the payment of the debts of the said George Wilson, to the discharge of her bond and mortgage. That instead thereof, he had applied the money received to his own use, and placed the mortgage in the sheriff’s hands, to seize and sell the ne-groes. The bill therefore prays an account and injunction. The defendant admits the marriage of G. Wilson with complainant Ann, and his death; but not that he died intostate: on the contrary he exhibits an instrument of writing, which he calls a will, wherein he is made sole heir and executor of the said G. Wilson, chargeable however with payment of his debts and legacies. Defendant admits that complainant Ann being disposed to contest the validity of the will, it was agreed that she should have one half of the clear residue of the personal estate, after payment of all incumbrances — the letters of administration were then revoked, and he qualified on the will. He denies that he had any authority from the legatees to compromise their rights, or that it was his intention to do so; and avers that he fully intended by his contract with complainant to allow her one half of the clear residue of the pex-sonal estate, after paying the debts and fulfilling the said G. Wilson’s testamcntaiy dispositions, and does not know or believe that the will was ever revoked. It is xxecessax’y here to refer to the paper writing mentioned ixx bill and answex’, axid state particular facts, before tlie questions for the determination oí the court are stated.

*554George Wilson was a single man when he executed this paper. He came over to South-Carolina afterwards; and in 1789 married complainant Ann, with whom he jjve¿ lintil ]ie died in the year 1791, without leaving any issue. It does not appear that he ever made a will in this state, or signed any other writing, disposing of his estate; nor is there any evidence of his having ever spoken to any person about the paper above recited.

Upon this case the general question was, whether' under these circumstances, this paper writing was to be considered as a will still subsisting? Under that, two others arise. First, whether this writing is merely a conditional contingent instrument of disposition, depending on the event of G. Wilson’s death before he arrived in Carolina, or whether absolute and subsisting in all events? Secondly, supposing it absolute, whether the great alteration in his circumstances by a subsequent marriage seven or eight years after making it, will amount to a revocation thereof, so as not to be subsisting at his death ?

For complainant it was contended, that this paper was nothing more than a conditional disposition by deed of the estate, on certain contingencies, which never having happened, it became null. On the other hand it was objected for defendant, that this paper was a will duly executed. That it is not essentially necessary to make use of any particular form of words in drawing wills, provided the intention of testator to dispose of his estate, is evidently and plainly shewn. It was also insisted, that this paper has been proved in the court of ordinary, where its validity as a will, was properly and only determinable. On reading this paper with attention, it is evident that the only words in the whole instrument that give it the smallest resemblance to a will, are those wherein he names and appoints the defendant and several others, successively, sole executors, and universal legatees; for in every other respect, it has the form of a deed. It cannot however be dehied, that a man may make his will in any form he pleases, provided he complies with the formalities required by law. it is equally true, that by long *555usage the ecclesiastic court has become the proper, though in this state not the only court wherein a will of personal estate is to be proved, and its validity contested; but this court has a power to set the will’ aside for fraud. This case is singularly circumstanced. A paper writing, now for the first time called a will, is proved and recorded in Scotland as a deed. The party who is injured by it, has no opportunity of contesting its validity there: and a copy of it some years afterwards is brought hei’e by the person claiming the estate under it, who when he finds that its validity as a will is about to be disputed, makes a compromise with the widow and gives her a bond, agreeing to allow her one half of the clear residue of the personal estate, after payment of debts: he is then permitted without opposition to qualify before the ordinary, who not having investigated the business, in fact has not determined on the validity of the will. We must here observe that the defendant comes with an ill grace to make this objection, after the compromise he has entered into; because it is doubtful whether the ordinary would have granted him letters testamentary* and qualified him as executor under the paper, if the complainant had made opposition: and defendant fearful of this, seems to have made this compromise in order to lull the complainant into a deceptive security, until he had obtained letters testamentary; supposing that the probate being once gained, no other court had the power to set it aside. The paper having been qualified under as a will, before the ordinary, the question for consideration is, whether it is merely a provisional contingent disposition, or absolute ■and subsisting. Here reference must be had to the instrument itself; from which it is evident that the whole of it, except the clause which provides the annuity for his father, is contingent and eventual; for he sets out with declaring his intention to leave the kingdom and reside in Carolina; but as many accidents might occur to prevent the execution of his design, he made that deed as he calls it to prevent any disputes that might arise about his estate, in case of his death. What those accidents were, he does not mention; but we must presume them to *556he such as might befal him and occasion his death before he arrived in Carolina, not contemplating that the paper was to have any efficacy if he should arrive safe. That ^ was not intended to be absolute is further evident from. his reserving tile estate to himself and his heirs in the first instance, with the power of making suck alterations as he should afterwards order by witnesses under his hands, in giving legacies or making future provision for any friend or relation during liis life. The case of Parsons and Lanoe, is very nearly similar to this, but much stronger; for in that the testator, after some pecuniary legacies, gave the rest of his estate to his wife: in this the bequest is unto nephews and nieces. There lord Hardwicke determined the will to be aprovisional contingent disposition; and it is observable also that although the testator had two children born after his return from Ireland, yet the lord chancellor would not make that great alteration of circumstances, the ground for his decision, but chose rather to found his decree upon the words of the will. This will then, being so penned, we are of opinion that the disposition is merely provisional and contingent; which not having happened, the disposition of the' estate cannot take place: the rather too as it does not appear that he did any act after his arrival here expressive of an intention to confirm it, or even mention to any of his friends in this state the existence of such a paper; and nothing will set it np but some act done by him after that event to republish it, or defeat the condition. Indeed it is presumable from the length of time that elapsed after its execution, that he considered it as a mere nullity, and altogether inoperative' — we must either presume that, or that he intended a fraud upon his wife, with whom he lived in harmony for two years after his marriage. As this will therefore was merely contingent and eventual, itis unnecessary to give an opinion upon the second question; but it has never yet been determined that marriage alone will amount to a revocation of a will of personal estate; at least there are no cases in the books, wherein the question has been immediately before the feouitj for all the cases that we have examined from Lug *557and Lug in 1699, to that of Lancashire and Lancashire in 1792, have been on the question of marriage and the birth of children, cither in testator’s lifetime, or posthumous Children; and the judges in the several courts have uniformly declared that marriage simply,\nd alone, has not yet been held to be a revocation of a will of personalty. The legislature having by law recognised the doctrine in its utmost latitude, that marriage and the birth of issue, is a total revocation of a will, it may be a subject worthy their serious attention to settle the question, whether marriage alone shall he a revocation of a will.

The injunction therefore must be continued until a liquidation of defendant’s account by the master, and further order of the court.