49 N.J. Eq. 266 | N.J. Super. Ct. App. Div. | 1892
Job Male died a childless widower, in his residence at Plain-field, where he had lived for several years, on the night of the 29th of January, 1891, aged about eighty-two years. He left an estate which is estimated to be worth more than half a million dollars, of which $60,000 is in personalty and the remainder is in realty.
The matter offered for probate as his nuncupative will, was had a little more than half an hour before his death. Early in the evening his attending physician, Thomas S. Davis, deeming him to be in a critical condition of health, called Dr. George W. Endicott in consultation. Almost immediately the two physicians concluded that Mr. Male’s life was, at best, limited to a few hours, and they so advised the inmates of the house. One of the proponents, Job Male, Jr., a nephew of the decedent, thereupon suggested that his uncle had previously expressed to him a desire to make a will, and Dr. Endicott at once proceeded to the residence of Craig A. Marsh, who had been Mr. Male’s legal adviser in several matters, and called him to Mr. Male’s bedside. Mr. Marsh, responding to the summons, reached Mr. Maleas shortly .after nine o’clock. Entering the bed-chamber he approached the bedside and asked Mr. Male if he recognized him, to which Mr. Male replied, “Yes, this is Mr. Marsh.” There were then present in the room the two physicians, Job Male, Jr., the nephew; Augustus O. Baldwin, a neighbor; Sarah Stout, an old lady, the sister of Mr. Male’s deceased wife, who kept house for Mr. Male; Gertrude A. Fenno, a niece of Mr. Male, and her husband, one of the proponents.
After expressing sympathy with the sick man, Mr. Marsh said that he understood that he, Mr. Male, desired to make a will, and
Mr. Male had been very liberal to the Plainfield Public-Library, having erected a building for it, and, among other-things, given it part of a collection of bric-a-brac, called the“Schoonmaker Collection.” Mr. Baldwin was interested in the-library, and, at this point in the questioning, he suggested that Mr. Male should be asked concerning the remainder of theSchoonmaker collection. Mr. Marsh then asked Mr. Male what he would do with the remainder of that collection of bric-a-brac;, and Male replied that he would give it to the public library..
While this conversation was progressing, Mr. Marsh made a lead pencil memorandum, of which the following is a copy:
“brothers’ children to share equally 9, 11 & 13 College Place & 120 Park Ave. house to Library
China
John W. Harrison & Job Male, Geo.
W. Fenno, Bxrs.
§10,000 to Mary Ann Gleason, my step-sister.
Power to sell real estate after 5 yrs.
Ornats bric-a brae, all of Sehoonmaker collection.
House and Lot to Job Male, but Mrs. Stout to have it for home as long as she lives.
“ Mrs. Finno, 133 Bway.”
When the conversation -was concluded, Mr. Marsh said to the two physicians and Mr. Baldwin, “ Mr. Male wants you as witnesses. Is that so, Mr. Male?” To which Male replied, “Yes,” and the gentlemen indicated thereupon immediately stepped close to the bed. Then Mr. Marsh, guided by his lead pencil memoranda, recited connectedly the purposes expressed by Mr. Male, and asked Male if that which he (Marsh) had said
It is now insisted that this acknowledgment by Mr. Male was a testamentary act sufficient to support that which Mr. Marsh then said, and to which Mr. Male assented, as his nuncupative will.
Immediately after this assent Mr. Marsh called for pen and ink, and sat down at a table and rapidly wrote out a will. After he had finished, he read the paper he had written to those assembled in the room, and asked if it accorded with that which Mr. Male had said. It was assented to as correct, and Marsh then .-added to it the formal attestation clause, and, returning to the bedside, read the written will to Mr. Male and placed a pen in his hand to sign it. During the writing of the will some twenty minutes had elapsed, and Mr. Male had rapidly grown very feeble, so that when the pen was placed in his hand he could not grasp it. Mr. Marsh assisted him by holding and moving his hand, so as to trace his signature upon the paper. After the signature was thus traced, Marsh asked Male to declare the will and his signature, but obtained no response. Mr. Male had become unconscious. All efforts to rouse him were unavailing, and he died within a few minutes. After it was ascertained that he could not be roused, Mr. Marsh declared that the will might be sustained as a nuncupative will, and that if it could not legally stand, it would, at least, cast a moral obligation upon the heirs at law.
If the testimony of the majority of the witnesses, that Mr. Marsh asked Mr. Male whether Marsh’s statement of the testamentary purposes was Male’s will, is accepted as reliably giving the language then used, it is yet apparent that the sense in which the word “ will ” was used, is equivocal, in that it is questionable whether it was adopted by Mr. Male as indicative of a present "testamentary act, or as a mere expression of assent to the correct
In solving this question, not only the declaration of Mr. Marsh that the wishes of Mr. Male would be binding morally upon the heirs if they could not be legally supported as a nuncupative will, coming, as it does, a part of the res gestee, becomes of importance, and, as well, also, the understanding of the witnesses whom Mr. Marsh called to the bedside.
Dr. Endicott says that he had no thought of any other than a written will, and that when Mr. Marsh recited, with his eyes upon the memoranda, he thought Marsh was reading a written will which he, the doctor, was to sign as a witness. Job Male says that he thought that Marsh read from the memoranda, and that he was reading a paper that w'as to be signed. Dr. Davis saw the pen and ink and assumed that the will was to be written. He was surprised when Mr. Marsh called them to the bedside. He says, “ He called us up suddenly as witnesses; I didn’t know then what he wanted of us.” Mr. Baldwin supposed that the recitation from the 'memoranda was because of a sensitive desire upon the part of Mr. Marsh to exactly and unmistakably understand the testator’s purpose. He says that every one.present expected Mr. Male to live long enough to execute a written will. He further says that he understood that the notes were taken for a will which he presumed would be copied, because he had never seen a pencil-written will executed. When Mr. Marsh recited, from his notes the witness understood that he was then merely seeking an approval of the notes which he would write out. He says that he then believed that if Mr. Marsh had anticipated Mr. Male’s rapid failure he would have had the notes signed, but. that no one understood that Mr. Male intended to make an-oral will.
The day succeeding Mr. Male’s death Mr. Marsh prepared a • statement of the particulars of the transaction referred to, which - was signed by all those who witnessed it except himself.
That statement is as follows :
“We do hereby certify that we were present at the bedside of Job Male for - at least two hours immediately preceding his death, which occurred on Thurs- -
“ We were all present when Mr. Male told Mr. Marsh how he wanted his property to go. Mr. Marsh made a pencil memoranda, and after Mr. Male got through telling how he wanted the property to go Mr. Marsh called up Dr. Endicott, Dr. Davis and Dr. Baldwin, and said, ‘ Mr. Male wants you for witnesses ’ lie asked Mr. Male if that was so and Mr. Male said, ‘ Yes.’ Mr. Marsh then said, ‘ This is how Mr. Male wants the property to go.’ Then he referred to his pencil memoranda, leaning over Mr. Male and repeated what Mr. Male had said, as stated above, and he asked Mr. Male if that was correct. Mr. Male said yes, it was. Mr. Marsh, Dr. Endicott and Dr. Davis and Mr. Baldwin were at this time all grouped about Mr. Male — within a few feet of him. Mr. Marsh said, ' Is that your will ? ’ Mr. Male said, ‘ Yes.’
“Mr. Marsh then sat down and rapidly drew up a formal will from the pencil memoranda. As soon as he had it finished he read it over to all present in the room, in the hearing of Mr. Male. Then the attestation clause was written at the foot of the paper, and the whole document was then read over to Mr. Male by Mr. Marsh. Mr. Male was partly propped up in bed and took hold of the pen to sign the paper. Mr. Marsh placed his hand over Mr. Male’s hand and guided the pen while the name was signed. Mr. Marsh asked Mr. Male if he acknowledged it to be his signature, and the paper to be his last will and testament. Mr. Male had become suddenly worse and made no reply. Mr. Marsh had Dr. Davis, Dr. Endicott and Mr. Baldwin each ask Mr. Male if that was his will. Mr. Male made no reply. Mr. Marsh told the three who were to sign as witnesses that they must be satisfied that Mr. Male understood what he was about, and declared the paper to be his will, before they could sign the attestation clause. As all agreed that Mr. Male was no longer conscious, and as all efforts to arouse him to consciousness failed, the
“ We further testify that at the time Mr. Marsh called up Dr. Endicott, Dr. Davis and Mr. Baldwin to the bedside of Mr. Male and told them. Mr. Male wanted them as witnesses, as above stated, Mr. Male was conscious, and his mind was perfectly clear. He himself gave the numbers of the College place properties, and of the Park avenue property, and of the property on Broadway. When the time at which the executors could sell was discussed, Mr. Marsh asked whether it would answer to give the power at the end of one year from the death of the testator, and Mr. Male said, ‘ No.’ Mr. Marsh suggested two years, and Mr. Male said, ‘ No.’ Mr. Marsh suggested three years, and Male said, ' No; make it five years.’ In giving the direction as to Sarah Stout, Mr. Male said that she had all she needed, and he need not therefore leave her any property, except the right to have her home as long as she lived. In naming the executor John W. Harrison, some one said he meant George W. Harrison, but Mr. Male said no, he meant John W. Harrison.
“ We further certify that the house in which Mr. Male died was his dwelling-house, in which he had lived for several years last past.
“ G. W. Endicott, M. D.,
“ A. C. Baldwin,
“T. S. Davis, M. D.
“ We certify that the foregoing is true in every respect.
“Sarah Stout,
“Gertrude A. Fenno,
“Job Male,
“ George W. Fenno.
“ I certify that I arrived as Mr. Male was giving the instructions to Mr. Marsh to give the Park avenue house and College place properties to the Plainfield public library, and remained from that time until Mr. Male died, and what took place from the time I arrived is correctly stated above.
“Gertrude Fenno.”
Later, Mr. Marsh prepared another written statement of the transaction, which Drs. Endicott and Davis and Mr. Baldwin signed on the 4th of February, 1891. It is as follows:
“ We, the subscribers, George W. Endicott, M. D., Thomas S. Davis, M. D., and- Augustus C. Baldwin, all of the city of Plainfield, county of Union, and State of New Jersey, do hereby certify, that on the twenty-ninth day of January, eighteen hundred and ninety-one, at about the hour of ten o’clock P. ]vr., and about one hour preceding his death, Job Male, then of said city of Plainr*275 Held, did pronounce his last will and testament in our presence, and, at the time of so pronouncing the same, said Job Male did bid us, the subscribers who were then and there present, bear witness that such was his will; that said will was made in the time of the last sickness of said Job Male, and in his dwelling-house in said city of Plainfield, in which he had been resident for several years next before the making of such will; that said will pronounced .as aforesaid ivas as follows:
“ In reply to a question by Craig A. Marsh to him, he (Job Male) said that he wanted to make his will, and that he wanted the children of his brothers to share equally, and said, ‘but first I give the Park avenue house, No. 120 Park avenue, and Nos. 9,11 and 13 College Place, to the Plainfield Public Library.’ He said, ‘ I make John W. Harrison, Job Male and George W. Fenno, my executors. I give ten thousand dollars to Mary Ann Gleason, my half-sister. I give my executors power to sell real estate, but not before five years after my death. I give the ornaments and bric-a-brac, known as the Schoonmaker Collection, to the Plainfield Public Library. I give this house .and lot to Job Male, but Mrs. Stout is to have it for her home, without charge, as long as she lives; after her death, I give it to Job Male. I give the house in which Mrs. Fenno lives, No. 133 Broadway, to her. What is left after the gifts to the public library, to Mary Ann Gleason and Mrs. Stout, I want equally divided among the children of my five brothers, Simon, John, William, James and Ambrose.
“ We further certify, that at the time of pronouncing his said last will and testament, said Job Male was of sound and disposing mind and memory, and 'that we were present continuously from that time until he died.
“ In testimony whereof, we have hereunto set our hands and affixed our seals, this fourth day of February, in the year of our Lord, one thousand eight hundred and ninety-one.”
Nuncupative wills, as a rule, are not favored by courts, for the very obvious reason that they are at best uncertain productions, depending upon the attention, intelligence, memory and ‘honesty of those who surround a dying testator. Not only may the remembrance of language be defective, but its intended meaning may be misapprehended, and, indeed, loose expressions •of desire may, either stupidly or dishonestly, be fabricated into a testamentary act, where such an act was not intended.
Prior to the statute 29 Charles II. c. 3, the courts, guarding •against imposition, required, in case of such a will, that it should clearly appear that the testator, at the time of uttering the words relied upon, had a present consistent intention that the very words uttered should constitute his will, and that the witnesses so understood his language. Then the opportunity which the
The nineteenth section of that statute recited, that “for prevention of fraudulent practices in setting up nuncupative wills which have been the occasion of much perjury,” be it enacted that no nuncupative will shall be good where the estate thereby bequeathed shall exceed the value of £30, that is not proven by the oaths of at least three witnesses who were present at the making thereof; nor unless it be proved that the testator, at the time of pronouncing the will, .did bid the persons present, or some of them, bear witness that such was his will, or to that effect; nor unless such nuncupative will was made in the time-of the last sickness of the decedent and in the house of his oilier habitation or dwelling, or where he or she has been resident for the space of ten days or more next before the making of such will, “ except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling.” And the twentieth section provided that after six months from the speaking of the words no testimony should be received to prove any nuncupative will, except the said-testimony, or the substance thereof, were committed to writing withing six days after the making of the said will. The act further provided that such a will should not be proved until the-expiration of fourteen days after the testator’s death, and then-only after process should be issued to the widow and next of kin,, in order that they might contest it. Soldiers in service and mariners at sea were excepted from the operation of the law.
Our act concerning wills, originally passed on November 16th, 1795, adopted the provisions of the statute of Charles II., in the-particulars indicated, almost in the identical language of those-provisions, substituting for £30, $80, and they remain the statute law of this state to-day. Pat. L. p. 189; Rev. (1821) p. 223; Rev. Stat. p. 363; Rev. (1877) p. 1245.
The essentials of -these statutory requisites, with the reasons-
“ The testamentary words must be spoken with an intent to bequeath, not ¡any loose, idle discourse in his illness, for he must require the bystanders to bear witness of such his intention; the will must be made at home or among his family or. friends, unless by unavoidable accidents, to prevent impositions from strangers; it must be his last sickness, for, if he recovers, he may alter his dispositions and has time to make a written will; it must not be proved at too long a distance from the testator’s death, less the words should escape the memory of the witnesses, nor yet too hastily and without notice, less the .family of the testator should be put to inconvenience or surprised.”
This statutory law was so justly aimed at the prevention of a patent evil, that since it came into existence the courts, in view •of its obvious purpose and to give effect to it, have demanded ¡strictness in proof of nuncupative wills in all essential points, whether they be such as show full compliance with the restraints of the statute or such as establish facts fundamentally indispensable to the probate, independently of the statute. Hence, the testamentary capacity of the decedent, the animus testandi at the time of the alleged nuncupation, and the bidding of those present, or some of them, to bear witness that such is his will, or to that effect, technically called the rogatio testium, which is evidence both of the animus testandi and the intent to nuncupate, are required to appear by the clearest and most indisputable testimony. Lemann v. Bonsall, 1 Add. 389; 1 Wms. Ex. 121, 122; Schoul. Wills § 377; 1 Redf. Wills 187; Dorsey v. Sheppard, 12 Gill & J. 192; Woods v. Ridley, 27 Miss. 119; Yarmall’s Will, 4 Rawle 46.
The statute does not require a fixed form of speech for the .rogatio testium. Its whole scope and policy is to provide a method in which a will may be made by one in extremis when there, is not time to resort to writing, and it is not expected that ■such a person will be able to use the exact words of the statute. Hence, the express license given to use words to the effect of -those used in the law itself. The English statute did not expressly require that the bidding of the persons present to witness ¡should be by words. It required a bidding “ or to that effect.” 'Our statute interpolates after the word “ or ” the word “ words,”
It is beneficent in protecting the next of kin from the danger apparent in a verbal will, made up from declarations extracted, by questions from a feeble, dying man, by requiring a certain-degree of intelligent freedom of action, and thus affording evidence of spontaneity and volition which might not otherwise be-had.
Even under the English statute, I find that the ecclesiastical' courts did not consider the rogatio testium to exist, unless it appeared in the testator’s own language.
In Parsons v. Miller, 2 Phillim. 194, the decedent was attended by Mary Parsons, who inquired if he had settled his-affairs; he replied that he had not made a will, and was too ill. to do so; she asked if there was anything he would have done- and she would see it done; he began at once to repeat the words-urged as his will, but without desiring her to bear witness. She-then, thinking it necessary to have another witness, said that she would call up Mary Carter that she might hear and be a witness,, to which he answered, “Do.” Mary Carter was called, and then Parsons bid him repeat, which he did. Sir William Wynne said: “ This is a rogatio testium, but not by the testator. I cannot hold here qui faeit per alium facit per se.” He also instanced the case of Sawyer v. Silversides, before Sir George
This wise requirement of the statute, as suggested by Chancellor Zabriskie in In re Hebden’s Will, 5 C. E. Gr. 473, 477, enters into the well approved definition of a nuncupative will, which is: “ When a man lieth languishing for fear of sudden death, dareth not stay the writing of his testament, and, therefore, he prayeth his curate and others to bear witness of his last will, and declareth by word what his last will is.” Perkins § 476; Bac. Abr. 305, “Wills D;" Prince v. Hazleton, 20 Johns. R. 502, 511.
Against the admission to probate of the matter here offered as the will of Job Male, it is urged, first, that when the words were uttered there existed in Job Male no inten-t to nuncupate — that is, intention of the mind that those very words should constitute his will; and, second, because there was no rogatio testium, bidding persons present to bear witness that those words were his will, or words of that import.
That a written will was contemplated when Mr. Marsh was sent for and commenced to converse with Male, there can be no
I am unable to perceive the least foundation in the conversation for a claim that there existed in the mind of Mr. Male the purpose that the very words he then spoke should be his will.
But it is claimed that when Mr. Marsh said to the physicians and Mr. Baldwin that Male wished them to be witnesses, and asked Male if that was so, and upon Male’s affirmative reply recited, with the assistance of his memoranda, and obtained an assent to that which he so recited, that there was a complete nuncupative will.
Is this position tenable ?
At the very outstart of an examination of it, it appears that that to which Male assented is unknown, uncertain, disputable. Did he assent that the very words which Marsh said constituted his will ? Or did he assent that they indicated a correct appre
The situation of this case exhibits the wisdom of the statutory requirement that the testator shall bid persons present bear witness that the words uttered are themselves his will, for the clear appearance of such a bidding would distinguish whether that which is now urged as a nuncupative will was mere instruction or a formal testamentary act. Does a rogatio testium. appear in Mr. Marsh’s statement, “ Mr. Male wants you for witnesses,” and Mr. Male’s assent to it? Witnesses for what? That the instructions were accurately understood? Or, witnesses of a written will that Mr. Marsh was about to prepare? Or, witnesses of a nuncupation? It does not appear that Mr. Male called them to the bedside or even desired them to approach it. Every indication is that Male’s purpose then was to make a written will. Was it not of such a will that he wished them to be witnesses ? And was not his assent to Mr. Marsh’s question .a mere nomination of the witnesses of his proposed written will ? I do not find anything in the question which could intimate to the witnesses that Mr. Male intended to nuncupate. Each of the witnesses denies that it suggested such a thought to him.
I need hardly suggest, in addition, that the words were not those of Mr. Male, exhibiting spontaneity and volition, as the statute requires.
It is plainly impossible, without disregarding the design and meaning of the statute, to hold that there existed a rogatio testium.
After Mr. Marsh completed the written will, he read it first to those assembled in the room, and then, having their approval of his production, added an attestation clause, and read the will again to Mr. Male, who made no remark either of approval or disapproval. The pen was placed in his hand and guided over the paper, but it cannot, with any satisfaction, be said that he-then understood that which transpired about him.
At this point, my attention is called to the decisions in several states which hold that wills written according to instruction, but unexecuted, because of the intervention of death before it was-expected, may be sustained as nuncupative wills. .
Among those cases are the following :
Mason v. Dunman, 1 Munf. 456, where the decedent sent for his neighbor to make his will, who took notes thereof in the presence of the deceased and another person, yet another person coming in as the latter parts of the notes were dictated. Part of the notes, at least, were read over to the decedent,-and then a draft of a written will was made from the notes, but when the draft was finished the deceased was delirious and he died without recovering consciousness; Offutt v. Offutt, 3 B. Monr. 162, where the decedent had a will made in writing in his presence; which was read to and approved by him while he was of sound and disposing mind, yet died before he could sign the will or have the witnesses attest it under his observation, and Phœbe v. Boggess, 1 Gratt. 129, where a decedent in extremis requested
In each of these cases the court sustained the documents as nuncupative wills, substantially laying it down as a rule that a paper not perfected as a written will may be established as a nuncupative disposition if its non-completion in the form contemplated resulted from the act of God or other cause than an-intention to abandon or postpone the consummation of it according to law, provided there be proof of the testamentary declarations by the requisite number of competent witnesses who were-present when the declarations were made.
In Porter’s Appeal, 10 Pa. St. 254, Mr. Justice Coulter says upon this subject: “No case was produced in the argument,, either from the English or American books, where it was held that a decedent who intended to make a written will, which, for any cause, was left incomplete or unfinished, died testate by nuncupation of the- unfinished will. I have met with but one case, that of Offutt v. Offutt, 3 B. Monr. 162, where it was ruled-that a paper not perfected as a written will may be established as anuncupative will where its completion is prevented by the act of God. But this depended much upon the .peculiarity or rather distinctive character of the Kentucky statute. But even that case does not fit the one. in hand, which, as I think is evident from the testimony, was not prevented from being completed by the act of God. But I doubt very much the fitness of that rule-in this state, which doubt is strongly confirmed by no such-English case being produced in the long line of their authorities-since the enactment of 29 Charles II.”
As to this same class of cases Chancellor Zabriskie, in the Hebden Will Case, supra, says: “lam aware that there are cases-in several of the states in which written instructions have been, admitted to probate as nuncupative wills. It may be that the statutes of these states require such action; but, if they do not, I am not willing to hold that written instructions can constitute a
The confidence with which these cases have been urged before me has led me to examine with some care the course of decision in the English ecclesiastical courts prior to the enactment of 1 Vict. c. 26 (1837), which provided that no will should be valid unless it should be in writing and executed in a manner therein prescribed, and subsequent to the Statute of Frauds, 29 Chas. H. (1676), which required that devises and bequests of land should be in writing, signed by the testator, or some one authorized by him, and attested by three or four witnesses, or else be utterly void and of no effect, and pronounced the restrictions touching nuncupative wills, to which I have referred. And I have concluded that the decisions of those courts clearly and consistently hold the principles already stated with reference to nuncupative wills. With respect to written wills of personalty, they hold that writings which were clearly shown to be intended by 'the decedent to express his testamentary intentions at the time of his death, should be admitted to probate as good dispositions of personalty when disentangled from dispositions of real estate, whether they were written by the hand of the testator or not, or signed or attested or not. Rymes v. Clarkson, 1 Phil. 22; Bone v. Spear, 1 Phil. 345; Read v. Phillips, 2 Phil. 122; Constable v. Steibel, 1 Hagg. 56; Maclea v. Ewing, 1 Hagg. 317; Wood v. Medley, 1 Hagg. 661; Fulleck v. Allinson, 3 Hagg. 527. And if 'the paper contained the disposition of the property to be made after death, it was admitted to probate even though it were meant 4o operate as a settlement or a deed of gift or bond, and not as a will. Masterman v. Maberly, 2 Hagg. 235. Also, that instructions for a will, written during the lifetime of the testator, might ’take effect as a will if the testator was prevented by death from executing a formal will. Goodman v. Goodman, 2 Lee 109; Robinson v. Chamberlayne, 2 Lee 129; Brown v. Hallett, 2 Lee 418; Green v. Skipworth, 1 Phil. 53; Huntington v. Huntington, 2 Phil. 213; Sikes v. Snaith, 2 Phil. 351; Musto v. Sut
In Nathan v. Morse, supra, Hugh Morse dictated instructions to his solicitor, who wrote them, and when he reached the clause by which he appointed his executors, he died. Immediately one Joseph, who was present during the giving of the instructions, asked that the instructions be read over to him, and, as they were-read, called attention that a legacy pronounced had been omitted.. The solicitor, recognizing his omission, added the legacy to that which he had written. Sir John Nicoll, upon this state of facts, said: “ I have no doubt in pronouncing this to be the will of the deceased, as far as the appointment of the executors; but it is perfectly clear that the other part was not committed to writing during the life of the deceased. Although the court goes to the utmost length to give effect to intention clearly proved and reduced into writing in the lifetime of the testator, yet it has never held that anything added to a will after death can be established. Death consummates the instrument; nothing can be added afterwards.”
Taking the distinction between such a written will and a nun-? cupative will, the same distinguished judge, in Sikes v. Snaith, supra, says: “ On the, point of law that a paper can be pronounced for, which had never been seen by the deceased or read over to him, I have no doubt. This principle was recognized in the case of Wood v. Wood, in which all the necessary instructions having been given by the deceased, and reduced into-writing in his lifetime, probate was given of so much of the paper as were shown by evidence to be exactly conformable to the instructions. Lt is essential that it should be written in the-lifetime; otherwise it would be a mere nuncupative will, and then of no effect under the statute.”
The addition of an attestation clause to such an unsigned and unattested document was presumptive evidence, in those courts, that the testator did not mean the paper to be a finality until something more was done, and probate was denied unless that
Thus it appears that before the act of 1 Vict. c. 26, the act of God preventing the preparation of a formal will, opened the door for the admission to probate of instructions for such a will which had been reduced to writing while the testator was yet alive, or the formal will itself when completed save in signing a written attestation.
If the decisions of the states to which I am referred do not rest upon some local statute, I am constrained to believe they must spring from confounding the practice under which instructions reduced to writing in the life of the testator were formerly admitted to probate, with nuncupative wills, for it is impossible to conceive of any reasonable interpretation of the statute of Charles II., by which they may be supported.
“It is a perversion of language,” said Mr. Justice Woods, in Dockum v. Robinson, 6 Fost. (26 N. H.) 372, “ and a confusion of thought, that directions to another to draw up a will in form for publication, is itself' a published will. The party himself cannot be supposed to think that he is thereby performing a final act. In the very expression of his purposes, and giving his commands, is involved the condition that the proposed disposition of his property shall not take effect, but in one particular form and manner that he has indicated.”
Until the supplement in our act concerning wills, approved March 12th, 1851 (P. L. p.218, Rev.p. 1247), wills of personalty in writing, unsigned and unattested, were admissible to probate, but that act changed the law, as did the act of 1 Vict. c. 26, in England, so that now, in this state, all wills, save nuncupative wills executed with the formalities already stated, must be signed and attested in writing.
I am most clearly of the opinion that neither the declarations here testified to, nor the writings produced, can be admitted to probate as the will of Job Male.
In Dorsey v. Sheppard, 12 Gill & J. 192, where there was a nuncupative will, the court approved the language of Si.r John Nicoll just quoted.
The prayer of the petition will be denied.