60 Miss. 251 | Miss. | 1882
delivered the opinion of the court.
A petition for the probate of an alleged nuncupative will was demurred to : First, because it assumed to convey real estate by nuncupation ; and, second, because the petition showed upon its face that the alleged testamentary words were spoken two months before the death of the decedent.
The first ground of demurrer was well taken, but went only to so much of the alleged will as'undertakes to pass the realty. It is clear that lands cannot pass under a nuncupative will. At common law laud was not devisable at all, and only became so in England by virtue of the statutes of 32 Henry the Eighth, and of 12 Charles the Second, which required that they should be in writing, signed by the testator, and attested by three witnesses. Personalty was always bequeathable by
Our statute in relation to nuncupative wills (Code of 1880, sect. 1266) speaks of property being “bequeathed” in that manner ; language wholly, inappropriate to realty. That our reports show several cases where nuncupative wills, which assumed to convey realty, have been admitted to probate, is of no consequence, since in these cases personalty was also disposed of, and it was therefore necessary that the wills should be probated. The question as to their effect upon the realty, not having been raised by counsel, was not considered by the court. Certainly no distinct announcement of this court can be found declaring such a will effective to pass real estate, and such a doctrine is contrary to sound principle as well as to the whole current of authority.
The second ground of demurrer is intended to present the question whether it is essential to the validity of a nuncupa-tive will that the testamentary words should be spoken when the party speaking them is in extremis, or at least at a period so shortly before death, that there was afforded thereafter no
Decree overruling demurrer affirmed, and defendants required to answer in sixty days. In no event will the will be admitted to probate except as to personalty.