Donald v. Unger

Whitfield, J., delivered the opinion of the court. Whether the phrase “last sickness,” in §4492, code of 1892, means in extremis in the sense that the party must not have reasonable time and opportunity to make a written will (as clearly intimated in Lucas v. Goff, 33 Miss., 644, and Parkison v. Parkison, 12 Smed. & M., 678, following Prince v. Hazletine, 20 Johnson 502, and the weight of authority), or not, as held in Johnson v. Glasscock, 2 Ala. (N. S.), 242, we think it is manifest —even under the views suggested in Sadler v. Sadler, 60 Miss., 251 — on the facts of this case, that the alleged will cannot be upheld as a nuncupative will. See authorities on this point collected in Beach on Wills, sec. 8, and in note to Sykes v. Sykes, 20 Am. Dec., 45. The last sickness here lasted two or three months; the alleged nuncupation took place a week or ten days before her death; the alleged testatrix had the amplest time and opportunity to make a written will, even after she was “positively and emphatically” told by the physician — ber son —that she could not possibly recover, and after that repeatedly tried to have a written will made, and one was at last prepared too late. Her purpose manifestly was to make a written will. It cannot be said that the alleged nuncupation was made here in such “last sickness ” as is meant by the statute. Without now defining that phrase precisely, but resting this case on its concrete facts, the most that could be said is, that Mrs. Unger [297] did give verbal instructions as to how her will should be written; but this is unavailing here, for the double reason that she is not shown, by the “clearest and most indisputable evidence,” (Lucas v. Goff, supra) to have spoken the words in her ‘ ‘ last sickness," within the meaning of the statute, and because ‘ ‘ verbal instructions for drawing up a written will cannot be admitted to probate as a nuncupative will. ’ ’ Beach on Wills, sec. 4, notes 15 and 16, with authorities, and note to Sykes v. Sykes, 20 Am. Dec., 46; Jackson v. Robinson, 26 N. H., 372. We have not thought it necessary to notice the other errors assigned. Decree reversed, and petition dismissed.