Dawson's Appeal

DrxoN, C. J. The alleged will cannot be sustained. One most important requisite of the statute is wholly unproved, and we shall consider no other of the numerous questions so ably discussed by counsel. We refer to the rogatio testiwm clause, as it is called, which declares that no nuncupative will shall be good, when the estate bequeathed shall exceed the value of one hundred and fifty dollars, “ unless 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 will, or to that effectThere is no proof whatever that the alleged testatrix requested the persons present, or any of them, to bear witness that such was her will, or any thing to that effect. One witness testifies: “ She called us all to witness what she said; ” another, “ She asked me if I would not come back and pay attention to what she said.” This is all the testimony which in any way directly touches the point. The fact that Mrs. Page intended to make a will, and supposed that she was doing so, and that the persons present so understood her, is all a mere matter of inference to be derived from the other facts given in evidence, namely, that she stated to those around her how she wished her'property disposed of, and called their attention to what she said. This is obviously not what the statute requires. Its language is too plain and unequivocal to admit of doubt or evasion. It is not that the testator shall bid the bystanders to bear witness to what he says about the disposition he wishes to have made of his property, but that what he so says is his will, or to that effect. The statute seems to have been most carefully and studiously framed with a view to excluding the inference or presumption which would otherwise [89] very naturally arise from the substantive words of the will itself, that a testamentary disposition of the property was intended. To establish the aniums testandi, or teatamentary purpose of the deceased, something more must be shown than the words of the will, and that the attention of the witnesses was called to them. A declaration of the testator that such was his will, or some other unequivocal act or fact of equal import, showing that an actual testamentary disposition of the property was intended, must be proved. This, it seems to us, under any the most favorable construction of the statute so as to give effect to the design of the testator, is the least that can be required. The reason of this requirement is well stated in some of the cases cited by counsel for the respondent. The legislature knew, as all persons of experience know, the inclination of most people, when in a dying condition, to declare to those about them the disposition they wish made of their property, and to request them to remember or bear witness to their wishes, and to aid in carrying them out. Such declarations are often made by persons having no present intention of making a will. It was to distinguish between such casual conversations by one in his illness as t'o his wishes on the subject of his property, and a valid nuncupation, and to guard against the former being imposed upon the court as testamentary, that this provision was inserted. The legislature deemed it unsafe to trust to any mere inference arising from the words of the supposed will as to the intention to nuncupate; and to uphold the alleged will in this case would, in our judgment, be to dispense with this requirement entirely, which of course we have no right to do. It hardly seems necessary for us to go through or comment upon the cases cited by counsel for respondent. It is enough to say that they are all clearly distinguishable from this case. In every one of them there was some extrinsic fact or circumstance, tending to show the animus testandi, which does not [90] appear here. Arnett v. Arnett, 27 Ill. 247, fully sustains tbe views we have taken. In Balter v. Dodson, 4 Humph. .342, the testator exclaimed, “I am gone — I am lost” — and, after a few moments of silence, addressed himself to the witnesses, saying: “ I wish to make a disposition of my effects,” and then pioeeeded. to dispose of his effects. In Gwin v. Wright, 8 Humph. 639, the testator was informed by the witnesses that he must soon die, and asked by them “ if he wished to make any disposition of his property,” and both witnesses “ understood at the time that he was making his will.” In Burch v. Stovall, 27 Miss. 725, the testatrix had expected to make a written will, and employed a person to write it for her, but being apprehensive that she would not survive until the time appointed for him to return with it, made the nuncupative will in its stead, declaring that “ she willed ” so and so. And in Parsons v. Parsons, 2 Greenl. 298, the testimony was, that the deceased, being asked, on the morning before his death, who he intended should have his property, replied that his wife should; that his father, who was the heir at law, being present, theieupon observed that he did not wish for a cent of his son’s property, but desired that it might go to the wife, and spoke of it both then and on another occasion as a matter well understood and agreed upon. The father afterward contested the will, and the court tried the case somewhat as if the element of estoppel entered into the consideration of it. Rut in all of these cases there were declarations of the deceased, and circumstances outside the language of the will, tending more or less strongly to show the intention to make a will. In the case at bar there were no such declarations or circumstances — onlv the facts that Mrs. Page sent for one of the witnesses to come and see her, and said “she wished to talk with him,” and requested the other two witnesses to pay attention to what she said. It may be admitted that these facts, together with the declarations of the deceased constituting the alleged will, raise [91] a strong probability that an actual testamentary disposition of tbe property was intended; but, as already said, they do not, in our judgment, satisfy the requirement of the statute. For these reasons the judgment of the circuit court must be reversed, and the cause remanded for further proceedings according to law. By- the Court. — Ordered accordingly.