| Md. | Nov 21, 1872
delivered the opinion of the Court.
The appellees having obtained letters of administration on the personal estate of Laura L. Biddle, from the Orphans’ Court of Cecil county, on the 21st of September, 1870, the appellant afterwards, on the 10th of January, 1871, propounded an alleged nuncupative will of said Laura, in the form of depositions of Almira V. Bramell, Matilda White, Cena B. Hayes and Ann Biddle, and prayed the same might be admitted to probate; to which petition the appellees were made parties and summoned to answer.
The respondents having answered, denying that the said Laura ever made any will, the Orphans’ Court, at the instance of the petitioner and appellant, transmitted to the Circuit Court for Cecil county the following issue for trial, via: “Was the alleged nuncupative will of Laura L. Biddle propounded to the Orphans’ Court of Cecil county on the 10th day of January, 1871, as the last will and testament of said Laura, in fact and in law her last will and testament?”
On the trial of this issue before the Circuit Court of Cecil, two exceptions were taken by the appellant — the first, to the refusal of the Court to allow the appellant to testify as a wit
The second exception is founded on the rejection of a series of pirayers offered by the plaintiff, and the granting of one submitted by the defendants.
The latter being the converse of the propositions contained in the plaintiff’s series, it will be unnecessary to examine these in detail, since it follows, necessarily, that if the defendants’ prayer was properly granted, those of the plaintiff were properly refused. Th.e defendants’ prayer is equivalent to a demurrer to the evidence. It affirms that, under the evidence in the ease, the jury must find “ the alleged nuncupative will of Laura L. Biddle, propounded to the Orphans’ Court, etc., as her last will and testament,” was not in fact and in law her last will.
It is based upon the principle, that where there is a total defect of evidence, in any particular, essential to the issue which it was incumbent on the plaintiff to prove, the verdict must be for the defendant.
It strikes at the theory of the plaintiff’s prayers, on the ground that there is neither fact nor law to sustain them.
The appellant insists that every preliminary prescribed by the Statute of Frauds and the Code, to establish a nuncupative will, has been expressly or impliedly complied with; that the jury might find from the evidence the testatrix did bid the persons present, or some of them, bear witness that such was her will, or to that effect; or, it might be inferred from acts, such as the nuncupation itself, or circumstances and facts surrounding the transaction.
In the zeal of argument, we are warned by the appellant’s; counsel not to deny the privilege designed to be secured by the statute, by requiring too rigid compliance with certain formula by persons “in extremis.” They argue that the “animus testandi ” and the “ rogatio testium ” are not two distinct,, separate elements in the constitution of a nuncupative will.
However the interpretation of the Statute of Frauds as to nuncupative wills may have been relaxed in other States, we do not feel at liberty to depart from the policy adopted in the Ecclesiastical Courts of England, and reiterated by our earliest and latest decisions.
Nuncupative wills originated in the tender regard of the law, for cases of extreme necessity, in which, to meet sudden exigencies, it permits them'under certain qualified conditions. Conscious of the liability of sick persons to be imposed on in their last moments, the law surrounds them with such guards as it deemed necessary for their protection. They are watched with great vigilance.
• The text writers, judicial decisions, and statutes, from the earliest times, indicate great jealousy as to the exercise of the power. They require evidence of a sound and disposing mind, a present intention to dispose, apt words of disposition, and three witnesses called, or bidden by the testator to bear witness to the will, or to that effect; all of which must concur in the last sickness of the deceased. ■
That distinguished jurist, Chancellor Kent, in the case of Prince, vs. Hazleton, after citing numerous authorities, showing the legal restraints imposed upon the exercise of the power of nuncupation, concludes with these impressive remarks:
“There, is one other consideration which imparts to this subject of nuncupative wills, a momentous character, and ought to incline us to give to them as. little countenance as possible. As soon as a nuncupative will is made, it becomes the interest of the legatee that the party’s sickness should prove to be his last sickness, for if he recovers, the will of course falls to the ground. Not so with a written will. That remains good until revoked, and it cannot be revoked but by writing. Let us, for one moment, pause over this consequence of nuncupative wills and observe with what a*643 deleterious influence they must suddenly act upon the heart, and what a powerful appeal they at once make to the selfish and dark passions of the human mind.” 20 Johns. Rep., 516.
In the ease of Dorsey vs. Sheppard, et al., decided in 1841, this Court said: “ Nuncupative wills, though tolerated, are by no means favorites of the law. Independent of the Scatute of Frauds altogether, the factum of a nuncupative will requires to be proved by evidence more strict and stringent than that of a written one in every particular. This is requisite in consideration of the facilities with which frauds in sitting up nuncupative wills are obviously attended. Facilities which absolutely require to be counteracted, by Courts insisting on the strictest proof as to the facta of such alleged wills. Hence the testamentary capacity of the deceased, and the ‘ animus tesiandi ’ at the time of the alleged nuncupation, must appear, in the case of a nuncupative will, by the clearest and most indisputable testimony.” Vide Demann vs. Bonsall, 2 Eng. Eccl. Rep., 147; 1 Williams on Ex’rs, 101; Priscilla Yarnall's Will, 4 Rawle Rep., 62; 12 Gill & Johnson, 198. The same principles are announced in the late case of O’Neill vs. Smith, 33 Md., 573.
It is entirely inconsistent with the letter and spirit of the Statute and Code, to supply by inference, the “rogatio testium,” the most significant and important of all the precautions imposed by them, involving both the publication and attestation of the will.
The language of the Code is: “ No nuncupative will shall be good, etc., that is not proved by the oaths of three witnesses at least, Avho were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, bear Avitness that such was his will, or to that effect.” The most imperative form of language is used. “ Negative Avords will make a statute imperative, and it is apprehended affirmative may, if they are absolute, explicit, and peremptory,
The words “ to that effect,” do not qualify the whole section or all its preceding provisions, but only the last clause of the sentence to which they are annexed, i. e., “to bear witness that such was his will.” This may be done in the language of the Code, or by equivalent words, but to supply the “ro~ gatio testium” by inference from the nuncupation itself, would render the most essential pi'ovision of the Code nugatory, and reduce the measure of proof to the standard of the common law, prior to the Statute of Frauds.
The language used by the supposed testatrix, before being interrogated by Mrs. Hayes, were°mero disjointed words, incoherent, disconnected and unmeaning. They required the suggestion of the interrogator to give them sense. Hence, the words in reply, if a will, was a will by interrogation, which of all others, is least favored in law. Dorsey vs. Sheppard, et al., 12 G. & J., 198.
Such a will especially, required full proof of a “ rogatio testium” to give it validity. Yet all the witnesses who speak to that point, concur in declaring there was no request to bear •witness that such was her will. Three witnesses depose “she did not say she wished them to remember these words as her will.” Mrs. Hayes, the interrogator, says, “ she did not say that she wished us to remember it, or that she wished us to be witnesses to her will,” and they proved no other words equivalent, or “to that effect.” But Mrs. Hayes “understood,” “ was of the opinion, based upon all that occurred,” “that Laura intended by what she said, to make her will and wanted her to remember it.”
This understanding of the witness, or opinion, does not in our judgment, qualify the provisions of the Code. There must be a request to bear witness or something equivalent thereto.
It follows, from what has been said, that in our opinion, there was a fatal hiatus in the testimony offered by the plaintiff to prove a nuncupative will, and therefore the prayers of the plaintiff were properly refused, because there was no evidence of a “rogatio testium” in fact, or “in effect,” and it would have been error to infer the same, from the acts and circumstances referred to in the prayers.
For the same reasons, the defendants’ prayer was properly granted.
It is unnecessary to inquire whether the ruling of the Court below upon the question raised by the first exception was correct or not, as, in the opinion of a majority of the Court, the plaintiff could not have been prejudiced by it.
Her evidence was already before the Conrt in the form of her deposition, and she could not be permitted to supplement it, by proving facts contrary to what was proved by three other witnesses, sworn in her behalf, and without such proof the result must have been the same. ,
Finding no error in the several exceptions taken below, the rulings of the Court are affirmed and cause remanded, that the Circuit Court may certify to the Orphans’ Court the finding on the issues, etc.
Judgment a firmed and cause remanded.