| Miss. | Oct 15, 1857
delivered the opinion of the court.
This controversy had its inception in an application to the Court of Probates of Attala county, to admit to probate a nuncupative will, alleged to have been made by Garland Goff, deceased. The application was refused, whereupon a writ of error was sued out to this court.
The following instrument, purporting to contain the will of the deceased, was introduced on the trial, to wit: “ Know all men by these presents, that we, James Henry and Chappel Hughes, of the county and State aforesaid, on the tenth day of this month, to wit, the month of March, 1857, were at the dwelling of Garland Goff, in said county, who was then confined from a sudden illness; and the said Garland Goff, being in expectation of speedy dissolution, and in fact being in extremity, about one o’clock of the said 10th day of March, in the year aforesaid, his attention was called by the said James Henry to the disposition of his property after his death. He then in answer thereto, declared his will as to the disposition he wished to be made of the same after his death: and did then and there utter the testamentary words following, or words to the like effect, namely, ‘ I allow for Elizabeth Hughes to have all of my property’
This instrument was attested by the signature and seal of the parties who drew it up. In their subsequent examination as witnesses, they do not entirely agree with each other, nor with their written statement of the testamentary words alleged to have been spoken by the deceased. These diversities and the conflict in their testimony are important, and must have had weight with the court, as their tendency was to leave at least in doubt, facts, the clear proof of which was essential to the establishment of a nuncupative will.
Dr. Henry testifies, that he was at the house of the deceased on the 10th of March, 1857, and that he asked him if he had made any disposition of his property. Deceased replied, in the presence of Chappel Hughes, “ and said, that it was too late, and that he was not able to make a written will, hut that he desired that Elizabeth Hughes should have all of his property, and that he wanted some good man to take charge of it for her, so that she might be benefited by it,” &c. And that deceased “ spoke these words in the presence and hearing of said Hughes, loud (enough) to be heard, and was heard by said Hughes; and were an immediate reply to the questions about the disposition of his property.”
Chappel Hughes, the other, witness of the transaction, stated, that he was present at the house of the deceased, on the 10th of March, 1857, during his last illness; and that he heard Dr. Henry inform deceased of his wife’s dying condition, and that “he also told Goff that he was dangerously sick himself, and that he ought to make some disposition of his property, and that he (Henry) said, here is this girl you have raised. Mr. Goff replied, I want all my property to go together; I allow her to have it all. This is the
On cross-examination this witness testified, that he was certain that deceased “ did not call any name at the time of said conversation.” That he objected to signing the instrument presented as the nuncupative will of the deceased, when it was presented and signed by him, because the name of Elizabeth Hughes was used; but that he did sign it, because he believed that the word her, spoken by the deceased, referred to, and meant Elizabeth Hughes; and that “neither Dr. Henry nor Mr. Goff said anything about making a will; that the word ‘ will’ was not used; that he has no recollection of Mr. Goff’s saying, it was too late to make a written will; if he said so, he did not hear him, and that he is certain that Goff did not use such words; that nothing was said about his (Goff’s) wanting some good person to take charge of, and keep his property for Elizabeth Hughes, or for any other person.” That the language testified to by witness, as having been spoken by the deceased, “is in nearly the exact language of the deceased, as he can recollect.” “He thinks they are in about the precise words.” This witness was in a position which enabled him to hear distinctly whatever was said by Dr. Henry or the deceased, when the alleged testamentary words were spoken.
Facts testified to by the witnesses, and in regard to which there is.no dispute, show that it was very proper that the deceased should have made some provision for Miss Hughes. She had been reared in his family, and had faithfully assisted him in his business, and had aided in the accumulation of his property. He had no children, and his wife was then in a dying condition; he had previously declared his intention to provide for Miss Hughes, and there is no doubt that such was really his purpose. With every disposition therefore to uphold the will, if it could be done with propriety, we are nevertheless bound to determine the question of its validity, by the established principles applicable in such cases.
The validity of verbal wills, made in extremis, in contemplation of death, is sanctioned by the law of this State, and when duly proved are equally, with written wills, entitled to be established. But the statute has imposed numerous restrictions upon wills of that character, which the manifest policy of the law requires to be
Let us apply this rule, to the evidence in the record. Assuming that there is no conflict in the testimony, but that both of the witnesses present at the alleged act of nuncupation, concurred in the statement of the facts, as detailed by the first one examined, Dr. Henry; the established facts are as follows: The deceased, being informed of his precarious condition, was asked whether he had made any disposition of his property. To which he replied, “ it was too late, and that he was not able to make a written will, but that he desired that Elizabeth Hughes should have all of his property ; and that he wanted some good man to take charge of it for her, so that she might be benefited by it; but that he was afraid that it would not be done, that it would fall into the hands of some person who might destroy it.”
These facts are insufficient to show, clearly and indisputably, that the deceased uttered the words attributed to him, with a testamentary purpose. In reply to the question whether he had made any disposition of his property, he said, “ It is too late, and I am not able to make a written will.” This language might indicate his consciousness of impending death, but it certainly does not tend in the slightest degree to prove, that he then meditated or intended to make a testamentary disposition of his estate. The opposite would be the more reasonable conclusion. Eor whatever his previous intentions may have been, they seem then to have been abandoned. It was then too late, and he was not able to make a written will. He was not informed, and may not have known, that a verbal will, made under the circumstances, would have been valid. From what circumstance then are we to infer, that the words expressing
We have looked at the testimony, in its most favorable aspect, for the plaintiff in error. But when we come to consider the testimony of the other witness, it is impossible not to doubt as to some of the facts, relied on to prove the animus testandi.
The witness Hughes, swears that no mention was made of a will by either the decedent or Dr. Henry, and that the deceased said nothing about its being too late, or that he was unable to make a written will, or that he desired some good man to take charge of the property for the benefit of Miss Hughes.
The testimony of Hughes, it is true, is. negative; and is therefore not entitled to the same weight with that of Dr. Henry. But nevertheless its legitimate effect, is to detract from its certainty. And hence, if it were conceded that the facts deposed to by Dr. Henry, if true, are sufficient to prove that the words were spoken by the deceased, under the belief an.d with the intent of making his will, we are not authorized, from the whole evidence in the cause, to hold that the material and essential fact, the animus testandi, is clearly and sufficiently proved.
Judgment affirmed.