Hammett v. Shanks

Bartol, C. J. delivered tlie opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore county, admitting to probate the nuncupative will of William D. Blaclristone deceased. Some of the witnesses by whom the nuncupation was proved, were legatees, and objection was made below to their competency; this objection does not appear to be urged in the brief of the appellant. Nor would it avail, since the decision in Estep vs. Morris, 38 Md., 417, and in Harris vs. Pue, 39 Md., 535, in which it was held that by the Acts of 1864 and 1868, a party who takes an interest under a will has been made a legal and competent witness to prove it. There being no valid objection to the competency of the witnesses in this case, the only question upon the appeal, is whether their testimony is sufficient to establish the alleged nuncupation, as a valid unwritten will of Wm. D. Blackistone deceased. A careful examination of the testimony has brought us to the same conclusion which was reached by the Orphans’ Court, and in our opinion their order admitting the will to probate ought to be affirmed. The requisites to constitute a valid nuncupative will, under our Code, Art. 93, see. 306, have been clearly defined in Dorsey vs. Sheppard, 12 G. & J., 192 ; O’Neill vs. Smith, 33 Md., 569, and Biddle vs. Biddle, 36 Md., 630. In those cases the alleged nuncupation was held to be unsupported by the proof. But the present case is dissimilar from them in every essential particular. Without recapitulating the testimony; it is sufficient for us to state as the conclusions which it clearly establishes : 1st. That the testator was of sound and disposing mind at the time of making the same. 2nd. That he had the animus testandi, or present intent to dispose of his property by will, and used apt words of disposition. [220] (Decided 8th December, 1874.) 3rd. The will has been proved by four witnesses, who all testify substantially in the same way, as to the words of the testator. 4th. The rogatio testium is clearly proved; or to use the language of the Code, the testator at the time of pronouncing the will, “ requested the persons present, or some of them, to bear witness that such was his will, or to that effect.” 5th. It is proved that the will “ was made in the time of the last sickness of the deceased, and in the house of bis habitation.” The testimony shows conclusively, that the nuncupation was made, when the testator was in immediate apprehension of death, and when he had not the time or opportunity to make a written will; which in O’ Neill vs. Smith, was defined to be. the meaning of the terms of the Code, •requiring such wills to be made “ in the time of the last sickness of the deceased.” Being of opinion that all these requisites of the law have been complied with, in this case, we have no hesitation in ■affirming the order of the Orphans’ Court. Order affirmed, and cause remanded.