Long v. Foust

MekrimoN, C. J. after stating the case, proceeded: The statute {The Code, § 2148, par. 3) in respect to nuncupative wills, is strict in its terms and provisions. It must be strictly interpreted and as strictly observed in all material respects— the purpose being to prevent and exclude mistake, misapprehension, imposition and fraud that might easily happen or be perpetrated when the alleged testator is in his last illness, [119] and sometimes almost in extremis. Bundrick v. Haygood, 106 N. C., 468, and the cases there cited. While the evidence in this case was not very satisfactory, we think it was sufficient to go to the jury to prove the execution of the will as required by the statute, which provides that such a will must be proven “ on the oath of at least two credible witnesses present at the making thereof, who state they were specially required to bear witness thereto by the testator himself.” It is true, the testator did not specify by name the particular persons he required to witness his will as expressed by him, hut the evidence of these witnesses went to prove that he was sensible, knew what he was doing, knew that several persons were present-,,saw them, and without naming any of them but one, he expressly required all present to be witnesses — he called to them, they were present, near to him, heard and understood his request and took notice of what he said. There were more than two persons eligible as witnesses for the purpose. The evidence tended to show the purpose and capacity of the testator to make a will, and that he did so in the presence of more than two credible witnesses who were present, and were specially required by the testator himself to bear witness thereto. It was sufficient that he saw the witnesses and charged them to bear witness to his will, and they did so, and it is not a good objection that he failed to designate them particularly by name. That he required them, each, all of them, to bear witness, was what the statute required. The purpose is that the testator shall require two witnesses at least to take notice and bear witness that he makes his will. He must require and direct a competent person, and that person must be able to testify that he was one of the persons — the witnesses — so required, and that he did take notice and bear witness. The witnesses here testified that they were called upon by the testator; that they did take notice and witnessed his will as [120] expressed by him. This was sufficient. Haden v. Bradshatu, 1 Winst.., 263; Smith v. Smith, 63 N. C., 637. We think the Court gave the jury so much of the special instructions asked for as the caveator was entitled to have. The other exceptions are without merit. Affirmed.