Scales v. Heirs at Law

Cobb, J. Nuncupative wills are not favorites of the law, and in applications for probate of such wills it must appear that every requirement of the statute has been met. In re Yarnall’s Will, 4 Rawle, 46; Dorsey v. Sheppard, 3 Gill & J. 192. One of the requirements of the law of this State is that “ it be proved that the testator, at the time of pronouncing the same, did. bid the persons present, or some of them, bear witness that such was his will, or to that effect.” Civil Code, § 3349. This section of the code was taken almost literally from the 19th section of the statute of frauds, and the part quoted is in the exact language of that section of the statute. Prince’s Dig. 917. Simple statements by the person claimed to have made the nuncupative will, indicating a wish or desire as to the disposition of property after death, are not alone sufficient to authorize the setting up of a nuncupative will, nptwithstanding such statements may have been made in the presence of a sufficient number of competent witnesses. It must appear not only that the person made use of words which would amount to a testamentary disposition, but he must have intended to make a will, and must have indicated in some way to the persons present, or some of them, that he had such an intention and that he desired them to bear witness to the disposition he was about to make of his property. While it is not necessary that all of the persons present [96] should be called upon bo bear witness that what was being said was intended as the will of the party speaking, it is essential that some of them should be so called upon; and while no given number need be thus called upon, there must be at least three witnesses to the testamentary disposition. See Smith v. Salter, 115 Ga. 286; Pritch. Wills, § 200, p. 220. It has been held that it is not necessary that the bidding of the witnesses should be by word of mouth; that it may be by acts, as by signs and gestures. Hatcher v. Millard, 2 Coldw. 30; Arnett v. Arnett, 27 Ill. 247, s. c. 81 Am. Dec. 227; Winn v. Bob, 3 Leigh, 140, s. c. 23 Am. Dec. 258. It is not, however, necessary in the present case to decide whether the ruling in these cases ought to be followed. It has also been held that where the nuncupative will is drawn from the witness by interrogatories, stricter proof is required than in other cases. See Dorsey v. Sheppard, 3 Gill & J. 192; Andrews v. Andrews, 48 Miss. 220. The statute requires that it should clearly appear that there was an intention to make a nuncupative will, and that the person making it should have in some way communicated this intention to some of the persons present and called upon them to bear witness to the testamentary disposition about to be made. It would be difficult to lay down any general rule as to how the persons should be bidden to bear witness. If spoken or written words are indispensable, it is certainly not necessary that the exact words of the statute should be used. Any words which adequately communicate the intention to make a will and amount to a request that the persons' to whom they are addressed should bear witness to it are sufficient. From the nature of things, each case must be decided on its peculiar facts. Strict proof is required, because the opportunity for fraud and the likelihood of a mistake are so great. An examination of the following authorities will throw much light on the subject, and show with how little favor these wills have been regarded, and how strict the rules are as to the quantum of proof necessary; 16 Am. & Eng. Enc. L. (1st ed.) 1013* (note 5); Pritch. Wills, §§ 200-201; 1 Under. Wills, §169; Page, Wills, §237; 1 Wms. Exrs. 168; Burch v. Stovall, 27 Miss. 725; Brown v. Brown, 2 N. C. 350; Morgan v. Stevens, 78 Ill. 287; Parsons v. Parsons, 2 Greenl. 273; Harrington v. Stees, 82 Ill. 50; In re Est. Grossman, 175 Ill. 425 ; Est. Wiley, 187 Pa. St. 82; Bundrick v. Haygood, 106 N. C. 468 ; Smith v. Thurman, 2 Heisk, 110; In re Yarnall’s Will, 4 Rawle, 46; Weeden v. Bart [97] lett, 6 Munf. 123; Baker v. Dodson, 4 Humph. 342; Baineau v. LeBlane, 14 La. Ann. 729; Dawson’s App. 23 Wis. 69; Winn v. Bob, 3 Leigh, 140; Biddle v. Biddle, 36 Md. 630; Garner v. Lansford, 12 Sm. & Mar. 558; Gwin v. Wright, 8 Humph. 639; Broach v. Sing, 57 Miss. 115; Dockman v. Robinson, 6 Foster, 372; Sykes v. Sykes, 20 Am. Dec. 40, 44, and notes; Offutt v. Offutt, 3 B. Mon. 162, s. c. 38 Am. Dec. 183; In re Will of Herben, 20 N. J. Eq. 473; Scaife v. Emmons, 84 Ga. 619. Upon a careful examination of the testimony in this case,- we are unable to find anything which would amount to a bidding of persons to bear witness to the alleged will. It is not pretended that there was any oral request on the part of the testatrix to any one to bear witness that she was. making a will. There is nothing shown by the testimony which would be the equivalent of a bidding. The testimony indicates nothing more than that the decedent made certain statements showing what disposition she wanted made of her property. It does not clearly appear that she knew she was making a will. For aught that appears from the testimony, she may have expected merely that her wishes would constitute a moral obligation upon her heirs at law. She may not have intended to make a legal will. But even if she did, there is no evidence that she communicated this intention to anybody, or requested any one to bear witness that she was making such a will. In short, the testimony comes far short of the strict rule required in such cases; and even if the charge of the judge was in any respect erroneous, it would not be cause for a new trial, as the evidence demanded a finding against the propounder. See Sampson v. Browning, 22 Ga. 293. Judgment affirmed. ’ By five Justices.