Wake County, NC - John Robertson v. Robert Dunn, 1812

                           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 showing how such person really
considered it.

The only question in this 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 property were to have it until after her death.

To all 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 thereof, I have hereunto set my hand and seal, this 16 January,
1805.
                                    Lucretia Robertson {Seal}
Teste: Jo. Fowler
       Leo'd Cooke

Hall, J. 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 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, 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 unneccessary 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.

Cited: Davis v. King, 89 NC, 446; Egerton v. Carr, 94 NC, 653.


Source:
NC Reports
January Term, 1812
NC Supreme Court
Pg 104-105

______________________________________________________________________

Copyright. All rights reserved.
http://www.usgwarchives.net/copyright.htm

This file was contributed for use in the USGenWeb Archives by
Guy Potts - gpotts1@nc.rr.com
______________________________________________________________________