Sampson v. Browning

By the Court. Benning, J. delivering the opinion. Should the motion for a new trial have been granted ? The plaintiff in error contends, that there were two grounds sufficient to support the motion. - 1st. A want of proof to show that the “testator, at the time of pronouncing” the words propounded as his will, “ did bid the persons present, or some of them, bear witness that such was his last will, or to that effect.” 2nd. A want of proof to show, that “such nuncupative will ” was “ made in the time of the last sickness of the deceased. ” It is true that there was no evidence going to show, that the “ testator ” bid the persons present, or any of them to bear such witness. Ad the statute says, “that no nuncupative will shall be good, where the estate thereby bequeathed, shall exceed the value of thirty pounds,” unless several things concur, among which is this; that “ it be proved that the testator, at the time of pronouncing the same, did bid the persons present or some of them, to bear witness that such was his last will, orto that effect.” Pr.Dig. 917. Yet, the verdict says, in effect, that the will shall be a good nuncupative will, except as to the realty. The verdict consequently, is contrary to the Statute. We think therefore, that the plaintiff in error is right, in the first of his two grounds. But we cannot say, that we think he is right, in the second of those grounds. We cannot say, that we think that there was a . want of evidence to show the words in question, to have been spoken, “in the time of the last sickness” of the speaker. 'We think that the evidence showed the words to have been spo [302] ken in the time of his last sickness. What the evidence did show, in this respect, was this: that the speaker, at the time when he spoke the words, was lying mortally wounded ; that he died of the wound, twelve hours after speaking the words; that his condition was that of stupor, from which he had to be aroused, to enable him to speak at all, and into which he would relapse as soon as left to himself; that when he was aroused from this stupor to make this will, he spoke some of the words of the will, and before they could be written down he relapsed again into the stupor ; that this scene was repeated several times, before all the words were spoke» and taken down. Such being what the evidence showed on this point, we cannot feel any hesitation in saying, that we think that it showed the words to have been spoken, “in the time of the last sickness ” of the speaker. Not to say so, would be to give a meaning, extremely restricted, and quite arbitrary, to the expression, “in the time of the last sickness,” contained i» the statute. Id 917, Judgment Reversed.