10 Pa. 254 | Pa. | 1849
A nuncupative will is, where the testator, without any writing, declares his will or testament, as to his personal estate, before two witnesses. The provisions of our statute are copied- from those of-the 29 Chas. 2, ch. 3, § 5, with the exception that, in England, there must be three witnesses. No case was produced on the argument, either from the English or American books, where it was hold 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. Munr. 162, where it was ruled, that a paper not perfected as a written will, may be established as a nuncupative will, where its completion is prevented by the act of God.
But this depended much on the peculiarity, or rather distinctive character of the Kentucky statuté. 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 the 29 Chas. 2.
This being proved by two witnesses, and there were no more present, would have been a good written will, previous to our late statute of 1833; and since that statute, it would have been good if the scrivener had written at the end of the instrument the testator’s name, if he was unable to write it himself. He lived an hour afterwards, in much pain, rolling on the bed, but perfectly sensible, and talking to those present. Elizabeth Suter, the only witness besides Pierce, says she does not know that he could not have written his name; no attempt was made, and no inquiry on the subject. Pierce left soon after he had written the memorandum. Pierce drew up one act of nuncupation, in which he was named as the person to settle the estate. He afterwards drew up another, in which that is annulled. The papers are dissimilar in phraseology, and the last of them disposes of the whole real estate of the decedent, including that in Nether Providence, which the first does not. I feel constrained to say, that this is one of those cases which justifies the opinion of this court, as expressed in Yarnel v. Yarnel, 4 Raw. 46, that is, that nuncupative wills, although tolerated, are not to be favoured, and are only to be endured in the precise exigency contemplated by the statute, that is, where there is not time to make a written will. But the whole momentum of the testimony is clear, that the decedent intended to make a written will, and that leaning of the testimony is supported by the words of the memorandum written at decedent’s request, “ told me to write down as his will, and for us to witness it.” What were they asked to witness ? Why, his written will. If that was left incomplete, by the ignorance or wilfulness of the scrivener, the courts cannot therefore make a nuncupative will, against the will of deceased, and thereby let in a dangerous precedent upon society.
The statute obviously meant that the intent to nuncupate should exist. After providing that all wills shall be in writing, there is, by way of proviso, a provision to make a nuncupative will of personal estate, under certain restrictions; that is, a decedent shall be allowed, in extremes, to dispose of his personal estate, where he intends to do that, and had not time to make or complete a written will. For the whole scope and policy of the law is, that when there is time, the will must be written; but when there is not time, a verbal disposition of the personal estate alone is allowed in extremity. But, no word was spoken by the decedent of a nuncupative will. The completion of the written memorandum was not pre
There being, in the judgment of this court, no nuncupative act, it is unnecessary to decide whether or not Elizabeth Suter was, under the circumstances, a competent witness.
The decree of the Register’s Court is reversed, and a decree directed to be entered by the clerk, in favour of the appellant.