Houston v. Houston

14 S.C.L. 491

• Court: Court of Appeals of South Carolina
• Decided: May 15, 1826
• Status: Published

Opinion

Nott, 3.

This case has been submitted to the court without argument or authority. But the court is satisfied with the decision of the court below. A distinction has always been made between a Will by which land is devised and a testament containing bequests only of personal property. A devise of real estate is considered in the. nature of a conveyance, and therefore can only operate upon lands of which the testator is seized at the time of executing the Will, (Roberts On Wills, 295-6-7 Richardson, Do. 57.) It would seem therefore that in the construction of such an instrument, relation must be had to the time of its execution. And yet even in that case I am not prepared to say, that so far as regards its execution, it must be done according to the existing law at the time of the testators death.

Saxon, for the motion. Me Craven, contra.

But with regard to bequests of personal property, mens ambulatoria est usque ad mortem. The Will takes effect from the time > f ¡.he death of the testator without regard, to the time of its execution. Goods and chattels therefore which he has at the time of his death will pass under it, although he did not possess them at the time of making the will; because they go to the executor, and pass not by the Will but by his assent, to whom the Will is only directory. (Richardson, 57. Banter vs. Coke, 1 Sal , 237.) If therefore a will is not considered as having existence until the death of the testator, it must be executed according to the law at the time; and this Will, not having been executed according to the provisions of the act, which was passed previous to the death of the testator, is void and of no effect.

The motion must therefore be refused