56 So. 177 | Miss. | 1911
delivered the opinion of the court.
The alleged testator died seised and possessed of both real and personal property, all of which is necessarily included in the description, “all my property,” contained in the alleged nuncupative will, and would pass thereby, were it lawful to devise realty by parol.
At the request of contestants, the court charged the .jury that “the law presumes, and, in the absence of evidence to the contrary, conclusively presumes, that Bill Caffey, if he was sane, knew that real estate would not pass under a nuncupative will.” If the testator in fact knew that real property would not pass under a nuncupative will, it is hardly probable that he would have attempted to so devise such property, and consequently the jury, on account of this fact alone, would have been warranted in seriously doubting the making of the will at all. That the will attempted to pass real estate would be of no assistance to the jury in determining whether •or not the will was made, if the testator in fact had no knowledge at all as to what property the law would permit to .pass under it.
In this connection, the knowledge or want of knowledge on the part of testator is a fact to be proven in the same manner that other facts are proven. The law does presume, for some purposes, that all persons know the law; but not for the purpose of supplying evidence of a-fact material to the controversy. Under this instruction,
Reversed and remanded.
