Smith, O. J.,
delivered the opinion of the court:
The appellants filed their petition in the Court of Probates of Monroe county, to vacate the probate of a certain instrument proved and admitted to record in said court as the last will and [769]*769testament of James T. Sartor, deceased, and to have the same declared null and ineffectual as the will of the said decedent.
The petition alleges that the instrument in question is not a will, because, as it is averred, it does not, upon its face, purport to be a will, nor was it shown de hors the record to be the last will and testament of the deceased; because it does not show, upon its face, that the alleged testator intended it to operate as a will; because it is not a testamentary paper either in form or substance; and for other reasons appearing from the face of the instrument. The petition contains no allegation of any fact which could, legitimately, constitute the subject of inquiry by a jury, upon an issue to try the question whether the instrument was the last will and testament of the testator or not.
The respondent demurred to the petition, and assigned various causes of demurrer, which it is not material, at least at this stage of the investigation, to notice. The demurrer was sustained, and a decree entered dismissing the petition; from which this appeal is prosecuted.
It appears evident, from the allegations and prayer of the petition, that the appellants did not seek to have the question, whether the instrument was or was not the last will and testament of the deceased, determined by a jury, upon an issue made up for that purpose; but to have the instrument in question declared null and void as the last will and testament of the alleged testator, and to vacate and set aside the probate of the same, upon the sole ground that the said writing was not a testamentary paper, but a deed, which fact appeared from the face of the paper itself.
When a will is probated in common form, any person interested, within two years thereafter, has the right to contest the validity of such will, by petition or bill filed in the court in which probate was had. When such a proceeding is instituted, the statute directs that “ an issue shall be made up and tried as other issues, to determine whether the writing produced be the last will and testament of the testator or not; and the verdict of the jury shall be final between the parties to the issue, saving the right to grant new trials as in other cases.” Code, 484, Art. 43.
[770]*770According to the settled doctrine of this court, the probate of a will in common form is not conclusive as to the rights of any party interested in the estate of the testator. A probate of that character is regarded only as “ an incipient step to be taken, in order to give the court jurisdiction of the matter;” and hence may be vacated and set aside by the parties interested, upon a showing “ of sufficient legal grounds.” And it is also settled that, in the proceeding authorized by the statute, a party desirous of contesting the validity of a will, of which probate in common form has been granted, is not, as the terms of the statute literally construed would seem to indicate, limited to matters de hors the alleged will, and which would constitute the subject of an issue, which could, legitimately, be tried by a jury, but may assail the validity of the will and its probate upon legal grounds appearing upon the face of the instrument itself; for example, that the instrument propounded and admitted to probate as a will is not a will, but a deed or instrument of another character. Hamberlin v. Terry, 7 How. 148; Cowden v. Dobyns, 5 S. & M. 82; Gower v. Langford, 12 Id. 560; Wall v. Wall, 30 Miss. R. 91.
v. It follows, therefore, that no valid objection can be raised to the petition upon the ground that the petitioners do not ask for an issue to be made up in order to determine the question whether the instrument in question was the will of the testator or not, but seek a determination of the legal question alone— that is, whether the instrument in question was a testamentary writing or a deed, and which it is manifest could only be decided by the court and not by a jury.
. It seems to be certain that the proceeding authorized by the statute above quoted was not designed as a review of the act of the court in admitting the alleged will to probate, but as an independent proceeding in the nature of a trial de novo, in which the validity of the will is to be determined upon the facts established or admitted by the pleading or proved by the evidence adduced on the trial. Hence the previous action of the judge of probates in granting probate of the will is not to be looked to as either argument or evidence in regard to any question involved in the subsequent proceeding under the statute to set aside and [771]*771vacate the probate. "We are therefore confined, exclusively, to an examination of the writing in question, and are compelled to determine the question whether it is a will or not from its form and the nature of its provisions.
In deciding this question — that is, whether the instrument is a will or a deed — the first observation to be made is, that the writing is unquestionably in form a deed. It states a consideration, and purports to be signed and sealed by the maker.
But it is well settled that whatever may be the form of the instrument, its true character — that is, whether it is a will or a deed — must be determined by the nature of its provisions, which it is true may sometimes be characterized by the attendant and concurrent circumstances of its execution. It is, hence, immaterial whether the maker calls it a deed or a will; for if, upon the whole, the intention was that the instrument should not take effect immediately, but should only have a future operation, to commence after the death of the maker, it will be a will. Wall v. Wall, 30 Miss. R. 91, and cases cited.
The first clause of the instrument is in these words: “Eor the love and affection I have for Harriet N. Sartor I give unto her all of my property, real and personal, during Tier widowhood; and if she marries it is all to go back to my niece, Sally Sartor ; and she is to pay Coleman, my brother’s children — namely, Elizabeth, Selina, Daniel, and Medora; — one thousand dollars apiece, commencing to pay one year from the time she receives the property; Elizabeth hers first, and Selina next, and so on until she pays all four of them, which will be twelve months apart from the first, second, arid so on.”
The second clause contains a statement of the deceased’s property, which is represented to consist of three hundred and twenty acres of land, twelve negroes, three mules, one horse, cows, hogs, “ and some seventeen hundred dollars worth of notes on different persons.” Nothing is said in relation to the increase of the slaves or of the stock, and no direction is given as to any part of the property except what is contained in the first clause of the instrument. It is signed and sealed, but unattested, and concludes in these words, “ given under my hand and seal.”
As above remarked, the instrument is in form a deed, and [772]*772there is no word or phrase peculiar to acts of a testamentary character which unequivocally shows that tbe deceased, in executing tbe instrument, supposed tbat be was making bis will.
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Smith, O. J.,
delivered the opinion of the court:
The appellants filed their petition in the Court of Probates of Monroe county, to vacate the probate of a certain instrument proved and admitted to record in said court as the last will and [769]*769testament of James T. Sartor, deceased, and to have the same declared null and ineffectual as the will of the said decedent.
The petition alleges that the instrument in question is not a will, because, as it is averred, it does not, upon its face, purport to be a will, nor was it shown de hors the record to be the last will and testament of the deceased; because it does not show, upon its face, that the alleged testator intended it to operate as a will; because it is not a testamentary paper either in form or substance; and for other reasons appearing from the face of the instrument. The petition contains no allegation of any fact which could, legitimately, constitute the subject of inquiry by a jury, upon an issue to try the question whether the instrument was the last will and testament of the testator or not.
The respondent demurred to the petition, and assigned various causes of demurrer, which it is not material, at least at this stage of the investigation, to notice. The demurrer was sustained, and a decree entered dismissing the petition; from which this appeal is prosecuted.
It appears evident, from the allegations and prayer of the petition, that the appellants did not seek to have the question, whether the instrument was or was not the last will and testament of the deceased, determined by a jury, upon an issue made up for that purpose; but to have the instrument in question declared null and void as the last will and testament of the alleged testator, and to vacate and set aside the probate of the same, upon the sole ground that the said writing was not a testamentary paper, but a deed, which fact appeared from the face of the paper itself.
When a will is probated in common form, any person interested, within two years thereafter, has the right to contest the validity of such will, by petition or bill filed in the court in which probate was had. When such a proceeding is instituted, the statute directs that “ an issue shall be made up and tried as other issues, to determine whether the writing produced be the last will and testament of the testator or not; and the verdict of the jury shall be final between the parties to the issue, saving the right to grant new trials as in other cases.” Code, 484, Art. 43.
[770]*770According to the settled doctrine of this court, the probate of a will in common form is not conclusive as to the rights of any party interested in the estate of the testator. A probate of that character is regarded only as “ an incipient step to be taken, in order to give the court jurisdiction of the matter;” and hence may be vacated and set aside by the parties interested, upon a showing “ of sufficient legal grounds.” And it is also settled that, in the proceeding authorized by the statute, a party desirous of contesting the validity of a will, of which probate in common form has been granted, is not, as the terms of the statute literally construed would seem to indicate, limited to matters de hors the alleged will, and which would constitute the subject of an issue, which could, legitimately, be tried by a jury, but may assail the validity of the will and its probate upon legal grounds appearing upon the face of the instrument itself; for example, that the instrument propounded and admitted to probate as a will is not a will, but a deed or instrument of another character. Hamberlin v. Terry, 7 How. 148; Cowden v. Dobyns, 5 S. & M. 82; Gower v. Langford, 12 Id. 560; Wall v. Wall, 30 Miss. R. 91.
v. It follows, therefore, that no valid objection can be raised to the petition upon the ground that the petitioners do not ask for an issue to be made up in order to determine the question whether the instrument in question was the will of the testator or not, but seek a determination of the legal question alone— that is, whether the instrument in question was a testamentary writing or a deed, and which it is manifest could only be decided by the court and not by a jury.
. It seems to be certain that the proceeding authorized by the statute above quoted was not designed as a review of the act of the court in admitting the alleged will to probate, but as an independent proceeding in the nature of a trial de novo, in which the validity of the will is to be determined upon the facts established or admitted by the pleading or proved by the evidence adduced on the trial. Hence the previous action of the judge of probates in granting probate of the will is not to be looked to as either argument or evidence in regard to any question involved in the subsequent proceeding under the statute to set aside and [771]*771vacate the probate. "We are therefore confined, exclusively, to an examination of the writing in question, and are compelled to determine the question whether it is a will or not from its form and the nature of its provisions.
In deciding this question — that is, whether the instrument is a will or a deed — the first observation to be made is, that the writing is unquestionably in form a deed. It states a consideration, and purports to be signed and sealed by the maker.
But it is well settled that whatever may be the form of the instrument, its true character — that is, whether it is a will or a deed — must be determined by the nature of its provisions, which it is true may sometimes be characterized by the attendant and concurrent circumstances of its execution. It is, hence, immaterial whether the maker calls it a deed or a will; for if, upon the whole, the intention was that the instrument should not take effect immediately, but should only have a future operation, to commence after the death of the maker, it will be a will. Wall v. Wall, 30 Miss. R. 91, and cases cited.
The first clause of the instrument is in these words: “Eor the love and affection I have for Harriet N. Sartor I give unto her all of my property, real and personal, during Tier widowhood; and if she marries it is all to go back to my niece, Sally Sartor ; and she is to pay Coleman, my brother’s children — namely, Elizabeth, Selina, Daniel, and Medora; — one thousand dollars apiece, commencing to pay one year from the time she receives the property; Elizabeth hers first, and Selina next, and so on until she pays all four of them, which will be twelve months apart from the first, second, arid so on.”
The second clause contains a statement of the deceased’s property, which is represented to consist of three hundred and twenty acres of land, twelve negroes, three mules, one horse, cows, hogs, “ and some seventeen hundred dollars worth of notes on different persons.” Nothing is said in relation to the increase of the slaves or of the stock, and no direction is given as to any part of the property except what is contained in the first clause of the instrument. It is signed and sealed, but unattested, and concludes in these words, “ given under my hand and seal.”
As above remarked, the instrument is in form a deed, and [772]*772there is no word or phrase peculiar to acts of a testamentary character which unequivocally shows that tbe deceased, in executing tbe instrument, supposed tbat be was making bis will. But it is contended in defence of tbe decree tbat, upon a proper construction of tbe paper, no present interest was vested in Mrs. Sartor; but that tbe estate whieh was given to ber vested and could only vest when she became a widow. If this position be correct, it is certain tbat tbe maker of tbe instrument intended that it should only operate after bis death, as the widowhood of tbe devisee could not occur until tbe testator died. Tbis construction of tbe instrument would very satisfactorily show it to be a will, not a deed, as contended for by tbe appellants.
But tbe terms of tbe instrument render it extremely uncertain whether the maker did not design to vest the property immediately in Mrs. Sartor, but to postpone tbe enjoyment until after bis death. Tbis is unquestionably tbe natural import of tbe language used. Tbe maker of tbe instrument says: " For tbe love and affection I have for my wife, Harriet N. Sartor, I give unto ber all of my propery, real and personal, during her widowhood,” &c. If, however, we adopt tbis construction, and of consequence determine tbe writing to be a deed and not a will, tbe effect of tbe instrument, if valid for tbat purpose, is to strip the grantor of bis entire estate, real and. personal. And for tbat reason, if for no other, it is highly improbable tbat tbe maker intended tbe instrument to have tbat effect.
And looking at tbe whole instrument, we are of opinion tbat it should be regarded as a will and not a deed; and therefore order the decree to be affirmed. '