Smith v. . Smith and Others

Drcic, J. The statutory provisions (Rev. Code, ch. 119, sec. 11) in relation to nuncupative wills, have existed in this State since 1784, and they are substantially the same as those in the statute of frauds, 29 Car. 2, ch. 3, sec. 19, 20; and these provisions have always been strictly construed and enforced by the Cour ts, both in this State and in England. Previous to the enactment of the Statute of frauds, nuncu-pative wills of personal estate were admitted to probate by the English Ecclesiastical Courts, when it was shown that the testator at the time of nuncupation w.asiw extremis, and unable to have a written will prepaired, and the present strict formalities were not required. The same liberality as to such wills may now be shown in this State, where the estate bequeathed does not exceed the sum of two hundred dollars in value. The provisions of the Statue of frauds in regard to nuncu-pative wills were enacted to prevent “fraudulent practices,” &c., and since that’ time it has generally been held by .the Court that all the requirements of the statute must be strictly complied with, before such wills can be admitted to probate. In the case before us the testamentary capacity, the animus testandi at the time of the alleged nuncupation, and all the other requisites of the statute, except the rogatio testium, are established by the special verdict. There is not the slightest *640 suspicion raised by the testimony, of any “fraudulent practice,” and we think the facts found in the special verdict show a sufficient rogatio testium. The testator was conscious of his condition, and was very anxious to make a disposition of his property. Some time before his nuncupation, he had applied to a lawyer to prepare a written will, which had not been done, and lie had frequently talked with witness Shaver on the subject. When he was almost in extremis, he sent for the witness Shaver, and told him (Shaver) what disposition he wished to be made of his property, and assented to another witness being sent for. In our opinion this was a sufficient rogatio testium as to witness Shaver, and meets the require, ment of the statute, in this respect, Harden v. Bradshaw, 1 Win. 263. The testamentary words were afterwards repeated twice in the presence of two witnesses, and were fully understood and assented to by the tesiator. The facts in this case in relation to the rogatio testium are certainly as strong and conclusive as those in the case of Harden v. Bradshaio. The judgment in the Court below must be reversed, and judgment rendered in this Court upon the special verdict. This will be certified to the Court below, to the end that a, pro-cedendo may issue to the Probate Judge, &c. Per Curiam. Judgment reversed.