151 N.C. 336 | N.C. | 1909
The facts, as condensed from the record, are: The deceased, with the intention ef making a written will, dictated instructions to her friend, Minnie I. Knox, some nine months before her death, and Minnie I. Khox made written notes as to the disposition which the deceased desired to make of her property. Such instructions were delivered some two or three months later, at the request of the deceased, to Robert,
This paper writing is condemned by the Revisal, sec. 3113, unless it is .authorized to be probated as a nuncupative will, under the Revisal, sec. 3121 (3).
It is evident that the “instructions” were not intended as a nuncupative will at all. The deceased was giving instructions many months before her death for the preparation of a written will, which failed of being perfected. It cannot be taken as a compliance with the requirements as to a nuncupative will, for
Certainly reference to a paper whose contents were not read over by the deceased, nor to her in the presence of two witnesses, cannot make such paper a nuncupative or oral will. Estate of Grossman, 175 Ill., 425; Knox v. Richards, 110 Ga., 5; 30 A. & E., 2d Ed., 564; McDowell v. Unger, 75 Miss., 294; Mole’s case, 49 N. J. Eq., 266; In re Hebden, 20 N. J. Eq.
That there must be a verbal statement of the testator’s wishes in the hearing of two witnesses is indispensable. Even if the dictation of instructions for the drafting of a written will could be considered — since such dictation was not intended to be final, but to be submitted for revision and signature — still that dictation was made to ónly one witness and was not, in law, “during the last sickness,” though there was no recovery from the sickness. Stricker v. Glover, 55 Pa. St., 386; McDowell v. Unger, 75 Miss., 294.
We are not inadvertent to, but cannot concur in, the appellee’s contention that nuncupative wills are no longer legal in this State, because the exception in regard to them, in what is now the Revisal, sec. 3113, was stricken out in the Code of 1883.
The judgment below is
Affirmed.