Felker v. Taylor

Beck, P. J. (After stating the foregoing facts.) Section 3925 of the Civil Code in part reads as follows: “No nuncupative will shall be good that is not proved by the oaths of at least three competent witnesses that were present at the making thereof; nor unless 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; nor unless such nuncupative will was made in the time of the last sickness of the deceased.” And in section 3926 it is further provided: “Application for probate of a nuncupative will must be made before the court within six months after the death of the testator, and the substance of the testamentary dispositions must be reduced to writing within thirty days after the speaking of the same.” It is not controverted that the nuncupative will in this case was made in the time of the last sickness of the deceased. There were three competent witnesses to the same who were present at the time of the making thereof; and there is proof offered that at the time of pronouncing the same the testator did bid one of the persons present to bear witness that it was his will, “or to that effect.” [436] The substance of the testamentary disposition, if what was said by the testator at that time amounted to a testamentary disposition, was reduced to writing within thirty days from the time the will was made. When the case came on for hearing in the superior court the propounder offered the amendment which is set forth above in the statement of facts. In that amendment it is alleged that the testator announced to the witnesses present that he was going to make his will, and called upon a named witness to witness the same; and attached to this amendment are affidavits of two witnesses showing additional circumstances not stated in the original application, which are essential to the making of a valid nuncupative will. But the contention was made before the trial court, in resistance to the application for probate of the will, that the additional circumstances attending the making of the will, set forth in these affidavits, should have been reduced to writing within thirty days after the making of the will; and this contention of the caveators was sustained by the court. Plaintiff in error insists that this holding of the court is error. We do not think so. The provisions in the statutes contained in our code relative to the making of nuncupative wills and the proof of the same were adopted for the same purpose as the provisions in the statute of frauds relating to the same subject. The 30th section of the statute of 39 Charles II, c. 3, has not been repealed in this State, and was not repealed by the act of 1805, as was held in the case of Newman v. Colbert 13 Ga. 38, and no statute enacted by our General Assembly since that date has repealed it. The section just referred to is in these words: “ After six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony or the substance thereof were committed to writing within six days after the making of the said will.” And in the comparatively recent case of Reid v. Wooster, 142 Ga. 359 (82 S. E. 1054), it was held: “A nuncupative will must be proved by the oaths of three competent witnesses who were present at the making thereof; and the circumstances of the testamentary disposition must be reduced to writing within thirty days after the making of the same. Civil Code (1910), §§ 3935, 3936.” See, in this connection, 38 R. C. L. 158, and the case of Estate of Grossman, 175 Ill. 425 (51 N. E. 750, 67 Am. St. R. 219).' Applying what was [437] said in the cases of Newman v. Colbert and Reid v. Wooster, supra, the court properly disallowed the amendment which was offered at the trial, which contains the averment that at the time of the making of the will the alleged testator announced to the witnesses present that he was going to make his will and called upon Miss Jeffie Lockett to witness the same. The circumstances contained in this recital quoted from the amendment should have appeared in writing purporting to contain the substance of the testamentary disposition that is required to be reduced to writing within thirty days, and evidence to establish these circumstances of the testamentary disposition will not be received where the circumstances themselves had not been reduced to writing within the period of thirty days. The ruling of the court below was in accordance with the provisions of that part of the statute of 29 Charles II to which we have referred, and with the decisions in' the two cases which we have cited. Consequently we are of the opinion that the court did not err in disallowing the amendment and sustaining the demurrer to the petition. Judgment affirmed. All the Justices concur, except Russell, C. J., and Beck, P. J., dissenting. Beck, P. J. In the foregoing opinion the writer has set forth the views of the majority of the court, but has himself reached a different conclusion, and, after careful consideration of -the questions involved, is compelled to adhere to it. In regard to nuncupative wills, in section 3926 of the Civil Code it is provided that “Application for probate of a nuncupative will must be made before the court within six months after the death of the testator, and the substance of the testamentary dispositions must be reduced to writing within thirty days after the speaking of the same.” In the case before us it seems to me that the section quoted has been fully complied with. Application for probate of the will was made within the six months period, and “the substance of the testamentary dispositions was reduced -to writing within thirty days after the speaking of the same.” But the contention was made before the trial court, in resistance to the application for probate of the will, that the additional circumstances attending the making of the will set forth in the affidavits should have been reduced to writing within thirty days after the making of the will; and this contention of the caveators was sustained by the [438] court. While the provisions in the statutes contained in our Code, relative to the making of nuncupative wills and the proof’of the same, were adopted for the same purpose as the provisions in the statute of frauds relating to the same subject, I do not think that the clear and unequivocal requirement in our statute, that “the substance of the testamentary dispositions must be reduced to writing within thirty days after the speaking of the same,” can be extended so as to include all of the attending circumstances; such, for instance, as that the testator did bid the persons present, or some of them, bear witness that such was his will. Nor was the fact that the testator was at that time of sound and disposing mind and memory any part of the “substance of the testamentary dispositions,” and to be reduced to writing within thirty days. In the case of Reid v. Woosler, 142 Ga. 359, it was held that “A nuncupative will must be proved by the oaths of three 'competent witnesses who were present at the making thereof; and the circumstances of the testamentary disposition must be reduced to writing within thirty days after the making of the same. Civil Code (1910), §§ 3925, 3926.” While the expression, “circumstances of the testamentary disposition,” is here used, an examination of what follows that ruling in the case last referred to will at once disclose that the expression, “the circumstances of the testamentary disposition,” is used in the same meaning as the expression, “the substance of the testamentary dispositions,” is used in the statute, and not intended to embrace the facts and circumstances set forth in these affidavits attached to the amendment which was rejected. No doubt the main purpose of requiring that the substance of the testamentary disposition made by the testator should be reduced to writing within thirty days was to prevent such a lapse of time as would cause the witnesses to forget the exact disposition made by the testator of his property. But there is no more reason why the fact that the testator was of sound and disposing mind and memory should be reduced to writing within thirty days than that such a fact should have been reduced to writing in the case of an ordinary will. Witnesses are no more apt to forget the facts showing the condition of the testator’s mind at the time of the execution of a nuncupative will than they would be to forget the condition of the testator’s mind in the making of a will regularly executed in the ordinary way. I do not overlook the [439] fact that nuncupative wills are not favored by the law. Nevertheless, when made under the circumstances provided for in the statute and duly reduced to writing and duly proved, they are to be given effect. I am authorized to say that the Chief Justice concurs in this dissent.