Burch v. Stovall

Mr. Justice Fisher delivered the opinion of the court. This was an application by the appellants to the probate court of Noxubee county, to prove and admit to probate what is alleged to be the nuncupative will of one Mary Hinkle, deceased, late of said county. The testamentary words uttered by the deceased, and as reduced to writing a few days after her death, are as follows, to wit: That, at her residence in said county, during her last illness, the deceased called upon two ladies, who were examined as witnesses in court, to bear testimony, or take notice, or words of like import, “that she gave, willed, and bequeathed unto her daughter Martha Burch, wife of James A. Burch, a certain slave, Sylvia by name, or words to the like effect; ” and, 2. “ That after the payment of all of her just debts, she willed and bequeathed that the remainder of her property, both real and personal, should be equally divided, share and share alike, between her children, or words to the like effect.” Not a doubt can exist as to the intention of the deceased to make the above testamentary disposition of her estate. The only question for consideration is, whether in performing this act, she conformed substantially to the provision of the statute on the subject. To show, however, that the testatrix must have supposed at the time that she was performing a testamentary act, we will notice briefly the testimony. James H. Gilmore proves that on Tuesday, about the 1st of March, 1853, while at the house of the deceased, he was requested by her to write her will as above set forth; that he told her he would have to return home first, and that he would return again on Friday evening or Saturday morning following, and bring with him the will. He proves, that returning on Saturday morning with the will, [729] he found the deceased dead. Mrs. Gilmore next proves that the deceased repeatedly, during the week, expressed as her will, that her daughter Martha should have the slave Sylvia, in addition to an equal share with the other children of deceased’s property; and that she would not die content if this arrangement was not made, assigning as a reason, that Martha had not had equal advantages with the other, children in obtaining an education. These circumstances appropriately precede the main proof in the cause, which will now be noticed. On Friday of the week named, the deceased becoming apprehensive that she would not survive till the next morning, the time appointed by Gilmore to return with the will written for execution, called a Mrs. Morgan to her bedside, when, in the language of the witness, “ deceased told witness that she had asked James Gilmore to write her will before that, and that he had put her off, and that she was fearful that she would not live till morning if she had another of her bad spasms.” Deceased said further, that she willed, or had willed, (she did not recollect which,) the negro girl Sylvia to Mrs. Burch, and an equal division of the rest of her property with the other children. The witness further states that when she approached the bed, the deceased requested her to lay her head down, that she wished to talk with her, and immediately uttered the words as stated relative to her will. Mrs. Gilmore, who proves that she was present at the time, says that the deceased said also to Mrs. Morgan that she wished her to see that Martha got the girl Sylvia. Both witnesses concur as to words uttered as testamentary by the deceased, and as to the circumstances under which they were uttered. Without further stating the testimony, it will be sufficient to say, that in our opinion it clearly establishes the legal execution of the will. It is true that no person was called on in so many words to take notice or bear testimony, that such was the last will and testament of the deceased; but words of like import were certainly employed, or if not words of the same meaning, the circumstances under which they were spoken, and surrounding the transaction, impress upon the same legal effect. [730] Mrs. Morgan is called from the “ fireplace ” to the bed of the deceased, for no other purpose but to hear these words spoken. When the witness was requested to lay her head by the deceased, and listen to what was to be said to her, it was equivalent to saying, “ I wish you to take notice or bear testimony that I uttered these words, or made this disposition of my property.” The party believed that she had but a few hours longer to live. She had despaired of executing a written will. The subject weighed upon her mind, and she was convinced that -she must act, and act promptly, and in a manner that would be remembered and respected after her death. The person with whom she conversed, and the persons in whose presence she conversed, could not fail to be also thus impressed, because the reasons for desiring and holding the conversation were at the time given; the consciousness that dissolution was rapidly approaching, and the certain belief that the written will could not be executed before death overtook the party. The testatrix who spoke, no less than the persons who listened, understood alike the object and design of the conversation, that it related to a matter which was to be by them remembered and detailed after her death. Being satisfied on this point, we notice the only remaining point in the cause. Both witnesses, Mrs. Gilmore and Mrs. Morgan, prove the testamentary words; but the latter fails to prove, except by inference, that Mrs. Gilmore was present when the words were spoken. She, however, proves that she was present, and heard every word said to Mrs. Morgan. The statute does not require the witnesses to prove the presence of each other at the time the words were uttered. It is sufficient, if proved by two witnesses, that a person was called on to take notice or bear testimony, that such was the party’s will, or words of like import. Mrs. Morgan, as we have shown, proves that she was thus called on. Here is the proof of one witness of this fact. Mrs. Gilmore makes, in substance, the same proof. Here, then, the proof is made complete. Two witnesses concur that a person [731] was in a legal sense called on to take notice or bear testimony, that certain words constituted the will of the deceased; Hutch. Co. 650. We deem it unnecessary further to elaborate this point, being satisfied that the will ought to be established. The decree of the court below is reversed, and cause remanded. ■ Decree reversed.