BRICKELL, C. J.
It certainly is now a settle^ principle prevailing in this country, without exception so far as we can ascertain, that testamentary capacity, as to personalty, is governed by the law of the last domicil; as to realty, by the lex rei sitce. Whart. Con. Laws, § 568; Story’s Con. Laws, § 465; Varner v. Bevil, 17 Ala. 286. The important rules which are generally adopted as guides in determining the domicil, when it is in doubt, are thus stated by Judge Story : ■ “ First, the place of birth of a person is considered as his domicil, if it is at the time of his birth the domicil of his parents. Secondly, the domicil of birth of minors continues until they have obtained a new domicil. Thirdly, minors are generally deemed incapable proprio marte of changing the domicil during their minority, and therefore they retain the domicil of parents; and if the parents change their domicil, that of the infant children follows it; and if the father dies, his last domicil is that of. the infant children.” Story’s Con. Laws, § 46. It is settled in this court that a guardian cannot change the domicil taken by his ward at the place of his birth, or acquired from the father at his death. Johnson v. Copeland, 35 Ala. 521. The testator was born in this State ; his parents had their last domicil here, and guardianship of his person and estate were granted by a court of this State. Though he accompanied his guardian to Mississippi, on his change of residence to that State, he retained the domicil of his birth, and his testamentary capacity must be measured by the law of this State.- The recital in the will, that the testator is. of “ Clark county, Mississippi,” does not estop the appellants from showing his domicil was in Alabama. Such a recital is never conclusive, but may always be rebutted by proof of actual domicil. Whart. Con. Laws, § 61; Gilman v. Gilman, 52 Me. 177; Whicker v. Hume, 5 Eng. Law & Eq. 52.
There is much contrariety of statement among common law writers as to the age at which persons were capable of disposing of personal estate by will. Lord Coke states the age to be eighteen, others seventeen. There are dicta of chancellors that fifteen is the age for males, if sufficient discretion appears; [436]*436and some have doubted if twenty-one was not the earliest period. Modern Probate Wills, 15. Modern writers generally, conforming to the rule of the civil law, state that males of fourteen, and females of twelve, had testamentary capacity as to personal estate. Redf. on Wills, 15; 1 Jarm. on Wills, 29 ; 1 Williams on Ex’rs, 14. The tendency of recent legislation, in England and in this country, has been by statute to prescribe the age. The statute of this State, not distinguishing between males and females, prescribes twenty-one as the age at which capacity to devise real estate shall be imputed ; and eighteen as the age at which personal property may be bequeathed. R. C. §§ 1910-1916. Whether a will disposes of real or personal property, it must be signed by the testator, or some person in his presence and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator. R. C. § 1980.
The instrument propounded as the will of the testator was signed by him after he had attained the age of eighteen years, and was attested by two witnesses as the statute requires. It is argued the instrument is a deed and not a will. A will is defined to be an instrument by which a person makes a disposition of his property to take effect after his decease, and which is, in its own nature, ambulatory and revocable during his life. It is this ambulatory and revocable quality which forms the characteristics of a will. True, a deed or other instrument may postpone the possession, or the enjoyment, or the vesting, and may not, therefore,' be fully effectual until the death of the grantor or the maker; but this is the force of its express terms, and does not result from the legal nature of the instrument. A deed may be so framed that the grantor reserves to himself use and possession during his life, and on his death create a remainder in fee in a stranger. Immediately on the delivery of the deed, the remainder vests in title, and is postponed only in enjoyment. A devise to the stranger would create no interest whatever until the death of the testator. The remainder created by the deed would be irrevocable by the grantor, and by ho subsequent grant or conveyance could he defeat it. The devise is revocable at the pleasure of the devisor; and is revoked by a subsequent grant or devise to another. 1 Jarm. on Wills, 13. It is not requisite to the validity of a will that it should assume any particular form, or that it should be couched in language technically appropriate to its testamentary character. However irregular in form or inartificial in expression it may be, if it discloses fairly the intention, that the destination of the property on which it operates is posthumous only, it is not material what title or designation may be given it. 1 Jarm. on Wills, 14. Instruments entitled deeds-poll, or indentures, [437]*437or articles of agreement, which substantially made testamentary dispositions, have often been deemed wills only, of which probate was necessary to their operation. This instrument purports to be sealed, and bears rather the form of a deed, but in its language has no words of grant or conveyance. Its words are of gift only, expressing a disposition of personal property to take effect in the event of death before the testator arrives at the age of twenty-one years. The death of the testator alone can operate to create any interest in the donee, and it is of consequence a will. Dunn v. Bank of Mobile, 2 Ala. 152; Shepherd v. Nabors, 6 Ala. 631; Gilham v. Mustin, 42 Ala. 365.
The capacity of the testator is not impeached. Though he was in declining health, and lingered under the disease from which he was suffering when the will was made until his death, twenty days thereafter, his intellect does not appear to have been at any time clouded or enfeebled. In ordinary cases, testamentary capacity not being doubtful, it is not necessary for the proponent, in the first instance, to offer evidence of the testator’s knowledge of * the contents of the will. This is inferred from publication and execution. Hill v. Barge, 12 Ala. 687; 1 Jarm. on Wills, 47; Shelford on Lunatics, 421; Carr v. McCasum, 1 Dev. & Bat. (Law) 276; McNinch v. Charles, 2 Pick. 229. The legal presumption in such cases is always in favor of the will; and he who seeks to impeach it must clearly show that the testator was imposed on, or that there was some mistake whereby he was deceived. Day v. Day, 2 Green’s Ch. (N. J.) 549; Pevus v. Bingham, 10 N. H. 514. When the will is written, or procured to be written, by a person who is a principal beneficiary under it, and who stands in a confidential relation to the testator, favorable to the exercise of undue influence, the presumption and onus probandi are against the instrument, and he must satisfy the conscience of the court that the testator had knowledge of the contents of the will, and voluntarily executed it. Hill v. Barge, supra; 1 Williams on Ex’rs, 9l; 1 Jarm. on Wills, 42-45; Shelford on Lunatics, 414; Raworth v. Mariott, 1 Mylne & Keen, 643 (7 Eng. Ch. 205) ; Ingram v. Wyatt, 3 Eng. Ecc. 166 ; Wrench v. Murray, 7 Ib. 525; Butlin v. Barry, 6 Ib. 406.
This will was written by Daniel, and he and his wife are its only beneficiaries. He was the guardian of the testator, who, from early infancy an orphan, had been reared and lived under his roof, as a member of his family. The will was written and executed in the testator’s last illness, but twenty days before his death, when recovery was doubtful, if not hopeless. Its execution was in the presence only of the family of Daniel, and when the testator had not access to, or intercourse with the re[438]*438lations who, by law, would have succeeded to his estate. These are all facts militating against the fairness and validity of the will, exciting the jealousy and vigilance of the court, and requiring clear and satisfactory evidence of capacity, volition, and that the testator knew the contents of the will. 1 Wms. Ex’rs, 96; 1 Jarm. on Wills, 42-47.
By the civil law, if a person wrote a will in his own favor, the instrument was rendered void, in conformity to an ordinance under Claudius, that the writer of another’s will should not mark down a legacy to himself. Vreeland v. McClelland, 1 Brad. Sur. Rep. 420. No such rule prevails in the English ecclesiastical courts, from which we have borrowed the general principles determining the validity of wills of personal property. In such case, these courts have asserted only that evidence of publication and execution will not authorize probate, as it will when the capacity is not doubtful, and the opportunity afforded for imposition, by the writing of the will by one taking a benefit under it, does not exist; or when there are not circumstances of suspicion against the fairness of the will developed by evidence. Ingram v. Wyatt, supra ; Butlin v. Barry, supra ; Raworth v. Mariott, supra; Hill v. Barge, supra. In the case of Barry v. Butlin, supra, on appeal to the privy council, Baron Pakke carefully and critically examined the decisions in the ecclesiastical courts, and says: “ The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present appeal; and they have been acquiesced in on both sides. These rules are two: the first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.
“ The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and call upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true wiil of the deceased.” Again: “ All that can be truly said is, that if a person, whether attorney or not, prepares a will with a legacy to himself, it is, at most, a suspicious circumstance of more or less weight, according to the facts of each particular case; in some of no weight at all, as in the case suggested, varying according to circumstances ; for instance, the quantum of the legacy, and the proportion it bears to the property disposed of, and numerous other contingencies; but in no case [439]*439amounting to more than a circumstance of suspicion demanding the vigilant care and circumspection of the court in investigating the case, and calling upon it not to grant probate without full and entire satisfaction that the instrument did express the real intention of the deceased. Nor can it be necessary that, in all such cases, even if the ■ testator’s capacity is doubtful, the precise species of evidence of the deceased’s knowledge of the will is to be in the shape of instructions for, or reading over, the instrument. They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof by which the cognizance of the contents of the will may be brought home to the deceased. The court would naturally look for such evidence; in some cases it might be impossible to establish a will without it, but it has no right in every case to require it.” In Raworth v. Mariott, supra, it is said: It must not be understood that direct evidence of the testator’s knowledge of the contents of the will is necessary; circumstantial evidence may be sufficient for that purpose. In Durling v. Loveland, 2 Curtis, 225 (7 Eng. Ecc. Rep. 92), the court reviewing the judgment of Baron Parke, in Butlin v. Barry, supra, pronounces as the rule on which the ecclesiastical court has proceeded, when a will is drawn by a person standing in a confidential relation to the testator, who takes a considerable benefit under it, that it is not necessary to prove the will was read over to the testator, or instructions given for its drawing, but that the court must be satisfied the will expresses the real intentions of the testator. The authorities in this country assert the same doctrine. Affirmative evidence, in any legal mode, that the will expresses the spontaneous intentions of the testator, satisfies the court, and removes the unfavorable presumptions which would otherwise be indulged. Crispell v. Du Bois, 4 Barb. 393 ; Downey v. Murphey, 2 Dev. & Bat. 82; Patton v. Allison, 7 Humph. 320.
The evidence in the record, without conflict, traces the history of the testator from his birth to his death. His parents died in 1851, when he was about six months of age, and they committed him to the care of Mrs. Daniel, the sister of his father, who was childless. His only immediate relatives were a sister of the whole and one of the half blood. These were older than he, and orphanage estranged them from all but mere casual intercourse. They do pot appear ever to have resided under the same roof, or to have been members of the same household. It is not strange then that he never manifested for either of them the affection he would have borne to the sisters who had shared with him a common parental care and love. The uncle and aunt to whom his dying parents intrusted him in infancy watched over him, and bestowed upon [440]*440him the care and affection they would have given to the child of their marriage; and he repaid it with filial obedience and love. The one he spoke of as his father, never applying to him any other name ; to the other he gave the childish yet endearing appellation of Niny. To his grandmother, — perhaps the last time he saw her, for they seem to have resided some distance from each other, — a year or two before his death, he speaks of the unvarying kindness and affection of his uncle and aunt, the only parents he had ever known, and declares if he should live to be a man they should never want for anything. To the witness Roberts he declared several times before his last illness, and when his health was not good, that in the event of his death he wished his Pa and Niny should have his property ; and when reminded of his sister, the appellee Mrs. Hill, said, she had drawn her part, and had a husband to talce care of her, — meaning, as we suppose, that she had shared equally with him in an inheritance from their parents. The will, on undisputed evidence, is then in consonance with the state of his affections, and in conformity to the only testamentary declarations he is proved ever to have made. If the pecuniary condition of his sisters was such as to have appealed directly to his sympathies, or to have excited his benevolence, no evidence of the fact is given, nor that he had knowledge of it. Apart from all evidence of his testamentary declarations, it would naturally be expected that the uncle and the aunt, who had stood from his infancy in the relation of father and mother to him, whose kindness and affection knew no varying or change, would be the recipients of his bounty, rather than the sisters with whom he had never been associated.
The will is drawn at his solicitation, is read over to him, and handed to him to read, and is signed by him, while able to sit up in his bed, and at his request is attested by two witnesses in his presence. These facts certainly furnish all the evidence, that the most jealous and vigilant court could demand, that the will expresses the spontaneous intentions of the testator, and that he had full knowledge of its contents. Whatever unfavorable presumptions could be drawn from the fact that the writer and his wife are the sole beneficiaries, and that the will was written and executed in the presence only of members of his family, are all repelled. Much stress is laid in the argument of counsel on the fact that the will was witnessed only by members of Daniel’s family. If the capacity of the testator was doubtful, if there was any evidence of concealment or. secrecy about the transaction, if he had resided so long at the place where the will was made as to have formed an intimate acquaintanceship without the family circle, the fact would be of more importance. But in no event could it be regarded as [441]*441important, when confronted with such clear and undisputed evidence of capacity and spontaneity as the proponent has introduced, and which is not controverted.
It is also insisted that proper medical attention was not furnished the testator. The evidence does not support the accusation ; and it seems to us rather harsh, if not cruel, when the boy’s whole life had been marked by the care of the uncle and aunt, which he never failed to acknowledge dutifully and affectionately, and when his corpse was borne from her roof, she was writhing in convulsions of grief, endangering her own life.
It is said there was a studied effort to cut the testator off from communication with his nearest relations before and after the execution of the will. The evidence does not lead us to this conclusion. That Mrs. Daniel advised her brother, the uncle of the testator (residing near the sister, Mrs. Hill) of the testator’s illness, is distinctly proved. The grandmother says that Mrs. Hill was informed of it. Whether she was or not, the fact of the communication repels the accusation of a studied effort to conceal his illness. The testator was sick for four months, during all which period the sisters make no inquiries for him or about him. It is not matter of reproach to them, but the fact is significant of the character of intercourse existing between them.
It is again urged that the ward’s whole estate consisted of moneys in the hands of Daniel amounting to more than six thousand dollars, that he was looking in dread to the testator’s maturity, as the day of settlement; and that he had therefore a strong motive to procure the will, which would operate as a release from liability. The weight of this fact has not been overlooked. Daniel was appointed guardian in 1857, when the ward was about six years of age. The entire estate of the ward consisted of money amounting in February, 1859, on the first annual settlement, to about forty-four hundred and seventy dollars. Regular annual settlements are made by the guardian to February, 1869, when we find the ward has been supported and educated and his patrimony increased to six thousand two hundred and sixty dollars. These settlements bear internal and conclusive evidence that the guardian honestly and faithfully has discharged his duty in the' management and improvement of the ward’s estate. It is unfortunately too often true, that a ward’s patrimony, if not larger than this, diminishes rather than increases in the hands of guardians ; the expenses of maintenance and education exceeding the income, and trenching gradually on the capital. It does not appear that Daniel would have been at all embarrassed by meeting this liability on his ward’s maturity, and he certainly never avoided, promptly and annually to place on the records of the proper [442]*442court clear and conclusive evidence of its extent. Is it fair or just, is it charitable or lawful, in the face of these facts, and of the convincing evidence that he had never faltered in his affection for the testator, to indulge the presumption that, to avoid this liability he, by force or by fraud, extorted this will ? When we say force, of course we mean only the moral coercion which the law denominates undue influence. We feel assured that the history of his guardianship as it is written in this record, and of his connection with the testator as it is disclosed by the evidence, acquits him of the suspicion.
It is most ably argued, that although the evidence may establish capacity, and may not establish fraud or undue influence in the procurement of the will, so clearly that its validity could be questioned, if no confidential relation had existed between the testator and the beneficiaries, yet its probate should be annulled, upon the general doctrine that courts of equity adopt on principles of public policy, in reference to all gifts made to or contracts made with a guardian, during the continuance of the .guardianship. The principle is fully recognized, and the importance of a rigid adherence to it properly appreciated. It cannot be applied in its full force to testamentary donations, though in these demanding from the court vigilance, and from the donees clear evidence of the capacity of the donor, of spontaneity and free agency in the execution of the gift.- A testamentary donation not taking effect until the death of the testator, until he is incapable of the use and enjoyment of the subject of the gift, and it must devolve in title, use, and enjoyment to another, either by his disposition or operation of law, the reason of the principle does not fully exist. It may be just and proper for him to give, and fair and honorable for the donee, in that event, to accept benefits which could not in life have been prudently dispensed, or in good faith received. Whatever may be his condition in life, a just father would not permit a son, just entering manhood, to strip himself of his fortune, and become the recipient of it. Yet if the son were dying, it might be his highest moral duty to bestow his fortune on the father, and the father, without the imputation of selfishness, could accept it. So, if a ward just reaching emancipation should materially diminish his fortune by a gift to his guardian, the transaction would primá facie import folly on the one hand and fraud on the other. But if the ward were dying, and his property ceasing to be of value to him, except in his power of disposition, he should make a testamentary donation to his guardian of a part or the whole of his estate, because of the guardian’s kind offices in the helplessness of his infancy and childhood, and no improper influence has been exerted, who can say that the ward shoidd not give, nor the guardian re[443]*443ceive? Whatever may be said of the wills of worldlings, whom avarice has hardened, or age chilled, the will of a generous youth is the offspring of his affections, and when these have not been practised upon it should be sustained. 3 Lead. Oases in Eq. 145, top p. That he may have the capacity of gratifying them, the law confers testamentary power over his personal estate.
The cases have gone very far in sustaining testamentary donations, when made to persons sustaining confidential relations to the testator, even when suspicious circumstances attended the transaction, and there was a deficiency of capacity. It would serve no good purpose to review them ; they are generally cited in the recent writers on wills, though to some of them we will refer. In Arnold v. Earl (6 Eng. Ecc. 230), a will made by a minor of sixteen in favor of his guardian and schoolmaster, in whose house he lived, was substantiated. The will in the case of Butlin v. Barry, supra, was drawn by a solicitor, taking a considerable legacy, and legacies given to a medical man and brother of the deceased, to the exclusion of an only son. It was sustained on proof of capacity and knowledge of contents. In the case of Crispell v. Du Bois, supra, the will was drawn by the physician and confidential adviser of the testatrix, who was sixty years of age. He was a principal beneficiary, and her heirs were excluded. On proof of capacity and volition, and of unfriendly relations with her heirs, it was admitted to probate. In Wyatt v. Ingram (3 Hagg. 466 ; 5 Eng. Ecc. 183), a will of a testator of seventy-four years of age, drawn by the father of his attorney and agent, who was appointed executor, and almost universal legatee, and with whom the testator lived, was supported, — all unfavorable presumptions arising from the facts being rebutted and the capacity of the testator established. These authorities rest on the principle already announced, that the existence of confidential relations between the testator and legatee or devisee excites the vigilance and jealousy of the court, and casts on the proponent of the will the duty of showing by affirmative evidence the testator’s capacity, volition, and free agency. When these appear the will must be supported.
We have examined with care the two cases, Morris v. Stokes (21 Geo. 552), Meek & Thornton v. Perry (36 Miss. 190), to which the counsel for appellees have referred. In each are features to be found not existing in the case now before the court, and which may have justified the conclusions reached. In the former case, the guardian had indulged the ward in reckless extravagance, in gross violation of his duty as a guardian, and thereby induced, as was supposed, the bequests to himself. This case and that have no features in [444]*444common. In the latter case, the guardian and uncle of the testatrix, her principal legatee, entertained an unreasoning prejudice and an unmanly enmity to the testatrix’s sister, which he had instilled, or endeavored to instil into the mind of the testatrix, and had made the continuance of his favor and affection depend on her participation in it. The pecuniary condition of the disinherited sister was such as to demand sympathy and relief, and the two sisters had been reared together, and were connected in associations and memory. No such facts exist in this case; and while we regard the law as correctly stated in the dissenting opinion of Handy, J., and not in the opinion of the majority of the court, that case is so clearly distinguishable from this in its facts that it does not affect the conclusion we have reached.
The decree of the chancellor vacating the probate of the will is erroneous. There is no conflict in the evidence. The undisputed facts support the validity of the will. While we have announced our concurrence in the rule prevailing in this court that the decree of the chancellor on controverted facts will not be disturbed, unless it appears clearly that he has erred; when the decree is in direct opposition to the material testimony, which is not controverted, it cannot be allowed to stand. The error is then not an error of fact, but in the legal effect of facts not disputed. Leeper v. Taylor, 47 Ala. 221.
The decree of the chancellor is reversed, and a decree is heré rendered dismissing appellees’ bill, and they must pay the costs in this court and the court of chancery.