Welling v. Owings

9 Gill 467 | Md. | 1851

Martin, J.,

delivered the opinion of this court.

As in this case it has been conceded that all the facts necessary to impart validity to a nuncupative will, as required by the first section of the act of Assembly of 1810, ch. 34, existed, the correctness of the order of the orphans court in admitting to probate the paper now in contestation depends exclusively upon the interpretation of the second section of that statute.

That section is in the following words:—

“ That six months after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof were committed to writing within six days after the making of the said will,” and in a case like the one before us, the true construction of this section requires, we think, that the testamentary words, or the substance thereof, should be reduced to writing within six days after they were uttered, and shown to, and approved of as correct by each of the attesting witnesses. It is well known that testaments of this character are, from their nature, not only open to fraud and fabrication, but peculiarly exposed to mistakes in relation to the testator’s intention on account of the imperfection and frailty of human memory. And it is manifest, that the legislature in legalizing these nuncupative wills, intended to guard the testator against imposition and to protect him from mistakes, by requiring that these testaments should in point of accuracy, approximate as near as possible to written wills, and they believed that this purpose would be only accomplished by demanding that the testamentary words, as uttered, should be written down and seen and recognised as correct by each of the three attesting witnesses, while the language of the testator was fresh in their recollection.

The word “testimony” as used in this section, applies, we think, to the nuncupation itself, and not to the prerequisites required by the first section of the statute, as that the will was made in the last sickness of the testator, and in the house of his habitation. These certainly are material facts with respect to the predicament of a person making a nuncupative will, and must be clearly proved. But they are facts which may be established at any time before the paper is admitted to probate, and need not be proved by the attesting witnesses. No useful purpose could be gained by requiring testimony of this kind to be reduced to writing within six days after the will was made. The provision with regard to the testamentary words, stands however upon a very different ground. It is obvious that accuracy and precision in reference to the words used by the testator, is of the greatest importance, as his.intention with respect to the disposition of his estate can only be known from the language he may have employed to communicate his meaning. And that accuracy might be secured, so far as practicable, in reference to the words used by the testator, we understand the legislature to have required that these testamentary words, or the substance of them, should be reduced to writing, and should be seen by, and found to be correct, by each of the three attesting witnesses, within the period limited by the second section of the statute.

It follows from the construction we have thus placed on the second section of the act of Assembly of 1810, ch. 34, that the decree of the orphans court admitting this paper to probate is erroneous and must be reversed. For it appears from the record, that although the pretended testamentary words were reduced to writing by one of the witnesses, and shown by him to another, within the time prescribed by the act, yet they were never reduced to writing by Taylor, the third witness, and were not seen by him until more than twelve months after the testator’s death.

The order of the orphans court is reversed with costs.

ORDER REVERSED WITH COSTS,