In re the alleged nuncupative will of Yarnall

The opinion of the court was delivered by Rogers, J. The papers purporting to be the nuncupative will of Priscilla E. Yarnall, are opposed on four grounds:— 1. They are not proved by the requisite number of witnesses. 2. There is an absence of the animus testandi. 3. Because the witnesses do not agree as to what the will is. And, 4. That the will was not made in the time of the last sickness of the deceased. The act of 1705, (which is in no respect different from the statute 29 Charles, except in the number of witnesses which is required) enacts, that no nuncupative will shall be good, where the estate thereby bequeathed, shall exceed the value of thirty pounds, that is not proved by two or more witnesses who 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, be made in the time of the last sickness of — 62 — the deceased, and in the house of his, or her habitation or dwelling, or where he or she hath been resident for the space of ten days or more, next before the making of such will, except when such person was surprised or taken sick, being from his own house, and died before he returned to the place of his or her dwelling. Nuncupative wills, though tolerated, are by no means favourites of the law. Sir William Blackstone observes, that the legislature has provided against frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse; and it is hardly ever heard of, but in the only instance where favour ought to be shewn to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with intent to bequeath; and as the same learned writer observes, not in any loose idle discourse; for he must require the by-standers to bear witness of such his intention. The will must be made at home or among his family or friends, unless by unavoidable accident, to prevent impositions by strangers. It must be in his last sickness; for if he recovers he may alter his dispositions, and has time to make a written will. It must not be proved at too long a distance from the testator’s death, lest the words should escape the memory of the wetnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience or surprise. Much more is requisite to the due proof of a nuncupative will, than a written one. Numerous restrictions, (as we have just seen,) are imposed upon such wills, the provisions of which must be strictly complied with, to entitle a nuncupative will to probate. The absence of due proof of strict compliance with any one of these is fatal. Bennett v. Jackson, 2 Phill. 190. Parsons v. Miller, 2 Phill. 194. So also, the factum of a nuncupative will requires to be proved by evidence more strict than that of a written one, in every single particular. This is requisite in consideration of the facilities, w'ith w'hich frauds in setting up nuncupative wills are obviously attended ; facilities which absolutely require to be counteracted by courts insisting on the strictest proof, as to the fact of such alleged will. Hence the testamentary capacity of the deceased, and the animus testandi, at the time of the alleged nuncupation, must appear in the case of a nuncupative will, by the clearest and most indisputable testimony. Above all, it must plainly result from the evidence, that the instrument propounded contains the true substance and import, at least, of the alleged nuncupation ; and consequently that it embodies the deceased’s real testamentary intentions, though not so reduced to writing during his or her life, as to be capable of being propounded as a written will; for unless the court is morally certain, by pronouncing for it, of carrying them, and no other into effect, it is obviously its duty, not to give any alleged will, much less a nuncupative one, the sanction of its probate. The words of the act are, that no nuncupative will shall be good, — 63 — where the estate bequeathed, shall exceed the value of thirty pounds, that is not proved by two or more witnesses, who 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. It must be observed, that there is a marked difference, as regards the attestation, between a written and nuncupative will, the legislature having placed many guards on the latter, which were unnecessary on the former. A written will may be reduced to writing at one time, and attested by the witnesses, at different times. Not so as we conceive in the case of a nuncupative will, which more nearly resembles the formula observed in the civil law. In the Roman jurisprudence, it was held, that a testament ought to be made uno contextu, without any foreign act intervening, and the witnesses were likewise required to attest without separating, or even discontinuing the act of subscribing, till all was complete. The legislature, in the act of 1705, evidenty looked to the nuncupation, as an evil, and it will not do for the testator to declare his will first in the presence of one witness, and afterwards in the presence of another witness. As in the Roman law, it does not seem that the witnesses were even released from the necessity of subscribing at one time, and in each other’s presence, so we think that the requisite number of witnesses must be present, and called on to attest at the same time, of the alleged nuncupation. The act says, the will must be proved by two or more witnesses who were present at the making thereof. We are further of the opinion, that the rogatio testium, the calling on persons to bear witness to the act, must also be done at the time of the nuncupation, and that this must be proved by two or more witnesses, who were present at the time. I cannot conceive, why inferior proof should suffice. It is an important part of the nuncupation, and goes far to shew the animus teslandi of the deceased, and for this-purpose it was that the act requires that the testator should call on the witnesses to remember that such was his will. The act says, the will shall not be good, unless 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. The legislature go upon the supposition, that more than two may be present, who may be called on to bear witness to the publication of his will, or that the testator may bid some of them, (not some one of them,) to bear witness that such is his will. We think this construction necessary, as a guard against fraud, to which nuncupations are particularly exposed. 1 cheerfully admit, that the act does not require any particular words for a rogatio testium. It is certainly sufficient if the court is satisfied, that the deceased meant to do a testamentary act, and wished the persons to attest, but I cannot agree, that if he desired only one to attest it, that satisfies the requisition of the statute. Still less can I suppose, that the rogatio testium to different witnesses at different times, would fulfil its requirements. — 64 — Test this’case, by these principles, and the court is clearly bound to say, that this will has not been proved according to the act, and should not be admitted to probate. Without insisting on the point, that there were not two witnesses to the whole will present on the 18th, the time of the alleged nuncupation, it is perfectly certain there is an absence of the requisite proof of the rogatio testium, at that time. Mary James says, that Priscilla E. Yarnall, mentioned both on the 17th and 18th, that she wished Walker Yarnall to have all her property, but that on the 18th no one was present but herself. Elhabeth Black was passing and repassing on the 18th. She says that the testatrix told her to remember that she wished her uncle Walker to have all her property. This was on the 18th. She says she is satisfied she told her to remember it; and this both on the 17th and 18th, she thinks. On the 17th and 18th, there is no other person who proves the rogatio testium, for although Elhabeth Black was passing and repassing on the 18th, she does not pretend to say that the testatrix called on her at that time, to bear witness that such was her will. Elhabeth Black testifies, that on sixth day, in the evening, after the family went to tea, she told her she had now settled all her worldly concerns, to her full satisfaction, and this she wished her to remember ; that she wished her uncle Walker to have all her personal property. But she adds, no one was present but her at .that time. She in no place proves that at the time of which Mary James speaks, she was bid to remember the dispositions the testatrix made of her property. ' Independently also of the want of the rogatio testium, there is great doubt whether there was that animus' testan di, wh ich the statute requires. I do not know that any form of words is required, but it is clear that the testamentary capacity of the deceased, and the animus testandi, at the time of the alleged nuncupation, must appear in the case of a nuncupative will, by the clearest and most indisputable testimony. Bennett v. Jackson, 2 Phillimore, 193. Leman v. Bonsal, Adams’s R. 389. It is by no means certain that the alleged testatrix was aware that she had the power to make a will. She asked Mary James on the 18lh, whether she thought she could make a will, who told her she thought not, but she had better take advice, and told her that perhaps she could give those things. She told witness that she had a good deal of property, some things to dispose of there, which she wished to leave to her uncle Walker Yarnall. This was on the day of the alleged nuncupation. Afterwards, (I infer it to be so,) she asked Ann Barton if she could make a will. She told her, she did not know, but thought she could, that she should ask Mr. Myers, who. would be up the next day. She then expressed a wish to see him, hoped he would come, and said she wished to leave her brother Robert all she had. Whether she ever consulted Mr. Myers, does not appear, but from this it is evident that at that time, she had no idea she had made a disposition of her property by will. ' Nor is it very clear that she ever — 65 — intended her nncle Walker to have any property except such as was then at his house. The expressions to Mary James, are very peculiar. She said she had a good deal of property, some things to dispose of there, which she wished to leave to her uncle Walker'Yarnall. It is very doubtful, whether it ever entered her mind, to dispose "of the moneys which belonged to her, and which her uncle has been so careful to insert in his statement of the will. It is passing strange, if the testatrix had an idea that she could make a will, that the will was not reduced to writing. These views would be sufficient to prevent the will being admitted to probate; but there is one other point, on which we think it right to express an opinion. Was this nuncupation in the time of the last sickness of the deceased, and coupled with this, does it possess the other requisites to entitle it to probáte % The prominent facts, as connected with this part of the case are these. Priscilla E. Yarnall was a minor, of the age of eighteen years, who had been afflicted with a pulmonary consumption for about six months, of which she died on the 27th of March, 1831. The will was made on the 18th, nine days before her death. Although weak in body, she retained the possession of all her faculties until the last hour of her life. Can a will, made under such circumstances, be entitled to probate, as a nuncupative will ? This point has been deliberately examined in the Court of Errors in New York, (where they have a similar statute,) in the case of Prince, Public admr. in the City of New York, Appellant v. Hazelton and Wife, 20 Johns. R. 503. Chancellor Kent, who has examined the case with great care, and whose views we adopt, has come to the conclusion, that a nuncupative will is not good, unless it be made by the testator, when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will.' 1 have examined the authorities on which the Chancellor relies, and although the opinions of some of the elementary writers are stated rather more strongly than there is any warrant for, yet, on the whole, the Chancellor undoubtedly is sustained by authority, in the general view he has taken on the reason of the rule, as applied to the construction of the statute. The Chief Justice of Connecticut also says, “ Nuncupative wills are allowed only when in extremis and dangerous sickness, the testator has neither time nor opportunity to make a written will, and sincerely and deliberately declares his intention respecting the disposition of his estate before a number of witnesses called for that purpose.” 1 Swift’s System, 420. Unless we give the statute this construction, we must give effect to every disposition made at any time, however protracted the disease may be, and whatsoever opportunities there may have been to make a written will. The inconvenience of such a construction is strongly shewn in the opinion of the Chancellor, to which I have referred. Priscilla E. Yarnall can, with no propriety be said to have been in extremis at the time of the alleged nuncupation. There was nothing to pre- • — 66 — vent her making a written will. Although fully impressed with the nature of her disease, she does not appear to have lost all hope of life. On the contrary, she speaks of her recovery, and her subsequent plans. She lived nine days after speaking the pretended testamentary words, with the full possession of all her faculties up to the moment of her death. It is unnecessary to examine the testimony in respect to the other point made by the appellees. It is conceded that the witnesses must agree as to the testamentary disposition. Unless the courtis morally certain of carrying the will of the deceased, and no other, into effect, it is obviously its duty not to give the will the sanction of iis probate. In conclusion, 1 have to remark, that there was an obvious impropriety in the principal devisee reducing the nuncupative will to writing. And this is shewn in the case itself, by his inserting a word, which he supposed made for him, not used by the testatrix, at least not proved by the testimony of any of the witnesses. Decree of the Circuit Court affirmed.