In Re Garland's Will

Clark, O. J. There is no natural right to devise or bequeath property. It is entirely statutory. When one is dead he no longer owns anything. No one has the right, unless by statute, to dispose of his property after death, or even of his body. 2 Blackstone, 10; Burroughs v. R. R., 15 Conn., 129; Crane v. Reeder, 21 Mich., 73; S. v. Hamlin, 86 Mo., 605; Sturgis v. Ewing, 18 Ill., 186; Gibson v. VanSyckle, 47 Mich., 439; Hodges v. Lipscomb, 128 N. C., 58. Society takes possession of both, and in countries where there is no will allowed, and in other countries when there is no will legally executed, provides for the distribution of the property, and the regulations are very diverse. Mr. Blackstone tells us (2 Blackstone Com., 374, 491) that in Greece wills were not permitted except at Athens, and there not until the time of Solon. Plutarch in his life of Solon earnestly denounces the evils produced by this innovation. In Rome wills were not permitted till the “Law of the Twelve Tables” (2 Blackstone, 491), and were unknown among the ancient Germans (Tacitus Germania, chap. 20). In England down to the time of Henry 11., only one-third of the personalty, called “a reasonable part,” could usually be bequeathed. This was held to be law in Magna Carta and was still the law in Scotland in Blackstone’s time (2 BL, 493). This was gradually changed in England, but the power to bequeath all of the j>ersonalty did not become fully recognized until the statute of 15 George II., less than two centuries ago. Wills of realty were not valid till the statute of 34 Henry VIII., ch. 5. Indeed, under the feudal law, land did not descend to the heir without payment of a fine, and the tenants in capite paid primer seisin of one year’s profits of the land. In England, the oldest son still inherits by right of primogeniture, and in France and other countries that observe the Codie Napoleon a father has no right to devise more than a child’s part of his estate. Hpon this principle of the right of the State to control or dispose, England levies a graduated inheritance tax of from 1 to 15 per cent upon all property before it is allowed to pass by descent or devise, and in France the in *557 heritance tax, wbicb is taken out before tbe estate can pass by descent or devise, ranges from 1 to 23% per cent, graduated according to tbe size of tbe estate. Tbe disposition of tbe property of tbe decedent being purely statutory, tbe regulation thereof, botb in cases of testacy and intestacy, varies greatly in different countries and from time to time witb changes in tbe statute. Tbe propounders in this case claim tbe personal property of tbe decedent, Polly Garland, by virtue of an alleged nuncupa-tive will, tbe. requirements of which, under our statute, are prescribed. Eevisal, 3127 (3). These are that such will must, be proved “on tbe oath of at least two credible witnesses, present at tbe making thereof, who state that they were specially required to bear witness thereto by tbe testator himself. It must als.o be proved that such nuncupative will was made in tbe testator’s last sickness, in bis own habitation, or where be bad been previously resident for at least ten days, unless be died on a journey or from home.” It is further provided that such will must be proved within six months from tbe making thereof, unless it was put in writing within ten days from such making, and further, that a citation must first be published “for six weeks in some newspaper in tbe State, to call in tbe widow and next of kin to contest tbe will, if they think proper.” Such will can dispose only of personal property. Newman v. Bost, 122 N. C., 533. In tbe present case it is not contended that there is any defect in these requirements except in tbe first particular, as to tbe witnesses being requested to bear witness. Tbe evidence is that the decedent said to tbe witness, Charles Warwick, “I want to fix up my business. I want to make a will,” and directed him to call tbe witnesses, which be did, and when Letbea Cox bad come to tbe bedside, tbe testatrix, in tbe presence of said Warwick and Letbea Cox, made tbe following statement: “I want Hester’s children to have all I have around here, except my notes and money, wbicb I want equally divided between Cornelius and Hester’s children. I don’t want Emma or any of Win Garland’s folks to have anything I have got, as they have now got two or three times their share. All that is here *558 is mine. Rube bad nothing bere.” Tbat sbe believed berself in extremis is shown by ber statement, “I might get so I can’t talk, and I want the heirs to have what I have got.” It is true tbat sbe expressed ber wish to make a written will, and asked the witness Warwick if be could write the will, but after tbat sbe remarked, “I might get so I can’t talk,” and said, “Call witnesses,” and thereupon Warwick called Mrs. Cox, and the declaration as above was made. This statement was made on Tuesday, and sbe died on the following Saturday night. On Friday sbe made an effort to have Dr. Bradshaw write ber will, but some one came in and it was not .written. Her remark to Warwick, “Get witnesses,” and, upon Warwick 'calling Mrs. Cox, her statement of ber wishes when they came to ber bedside was a sufficient request by the testatrix to the witnesses. Indeed, Mrs. Cox testified: “Sbe told me to stand around and listen to what sbe said and to witness it. Her mind was good.” This case much resembles Haden v. Bradshaw, 60 N. C., 259, where $13,000 in cash was bequeathed, and in which the Court said: “The statute requires tbat only some of the witnesses present at the making of the nuncupative will shall be ‘specially required to bear witness’ to it.” The Court said further: “íhe object of this requirement of the statute is tbat it may be known with certainty tbat the testator was making bis will and tbat witnesses, by having their attention' drawn to it, might understand and recollect what the will was.” The doctrine in Haden v. Bradshaw has been followed in Smith v. Smith, 63 N. C., 637; Bundrick v. Haygood, 106 N. C., 468; Long v. Foust, 109 N. C., 114. The evidence in this case is very similar to tbat in Haden v. Bradshaw and Smith v. Smith. In Bundrick v. Haygood, relied on by the eeveator, the witnesses did not say or intimate that they were called as witnesses by the testatrix, who merely said tbat sbe “wanted to see ber sister and wanted ber to have all ber things,” but did not express any intention, as bere, to make a will or call any witnesses. In the present case, if the testimony of the witnesses Warwick and Cox is to be believed, the statute was complied with. The case should have been submitted to the jury.' Reversed.