Reports of cases argued and decided in the Supreme Court of the State of Texas, during latter part of Tyler session, 1863; Austin session, 1863; Galveston, Tyler and Austin sessions, 1864; and Galveston session, 1865. Volume 27. Page: 275

                                
1864.]               FERCUSON v. FERGUSON.                342
"In witness whereof I have hereunto set my hand and affixed my
seal this the day and date above written, in presence of - .
"ROBERT A. FERGUSON.
"Attest:
"William HI. Murray,
"Thomlas Murray."
This instrument was acknowledged by Robert A. Ferguson and recorded
in Fayette county.
The defendant excepted; his exception was sustained and the cause
was dismissed; from which order of dismissal the defendants appealed,
and assigned for error the rulings of the court in sustaining the exceptions
to the petition of 'plaintiffs.
W.I G. WVeb, for the appellants, cited 2 Nott & McC., 531; 2
Vesey, 226, 441; 23 Wend., 45; 2 Wend., 308; 1 Pa., 32; Littell's
Sel. Cas., 462; 3 My. & R., 32; 12 N. H., 371; 24 Ala.,122; 13
Ala., 731; 6 Ga., 515; 2 Murph., 133; 6 Watts, 522; 3 Leigh, 147.
[342] J. D. d& D. C. GiGddings, for the appellee, cited 10 Mass.,
456; 12 Mass., 456; 7 John., 26; 21 John., 52; 2 Kent. Corn., 438;
1 Tex., 161; 1 Jarm. on Wills, 14, 19, 20; 7 Metcalf, 188.
MooEz, J.- The only question in this case depends upon the construction
that should be given to the instrument of writing executed
by Robert A. Ferguson, the appellee, on the 7tlh of October, 1845, in
favor of the appellants, Napoleon B. Ferguson and Elizabeth A. V.
Murray. Shall this instrument be held to be a deed or a will? The
appellants, who were plaintiffs in the court below, allege in their petition
that it was executed and delivered as a deed of gift, and with
the intent and purpose of vesting in the donees an immediate and indefeasible
title to the property embraced in it, to take effect in possession
after the termination of the life estate reserved to the donor.
The court below from its action upon the demurrer evidently regarded
the paper as of altogether a testamentary character. And if this is
the clear and unequivocal legal import of the instrument, its legal effect
could not, of course, be contradicted or varied by proof, that it
was executed and delivered with the belief and intention on the part
of the maker that it would operate as a deed of gift. If on the other
hand it was intended to operate as a deed, and it is fairly and legally
susceptible of such a construction, effect should be given to it as such.
The law does not require that a will shall assume any particular
form, or be couched in language technically appropriate to its testanentary
character. However irregular it may be in form, or inarti275