
    Page &c. v. Page.
    October, 1843,
    Richmond.
    (Absent Cabell, P.)
    Nuncupative Will — Last Sickness — Commitment of Testimony to Writing — Construction of Statute — What sickness will "be considered the last sickness of the deceased, and what will he considered a commitment to writing- of the testimony or the substance thereof, within the meaning- of the statute concerning nuncupative wills, in 1 R. C. 1819, , p. 377, § 7, 8.
    Same — Impeachment after Probat — Construction of Statute — The statute in 1 R. C. 1819, p. 378, § 13, which allows a person interested to appear within seven years after probat of a will, and by bill in chancery to contest the validity of the will, applies only to written and not to nuncupative wills.
    Same — Same—Case at Bar — When a nuncupative will has been proved before a court of competent jurisdiction, after fourteen days from the death of the testator, and after the widow has 425 been summoned to contest the *same, as directed by the act in 1 R. C. 1819, p. 379, § 18, the sentence of the court admitting the same to probat is binding upon her, and cannot be impeached except by appeal therefrom, or by a bill in equity founded upon her having been prevented by fraud or accident from making her defence in the court of probat.
    Same — Invalidity as to Realty — Case at Bar. — A nuncu-pative will is of no effect in law in relation to the a testator’s real estate, or the profits to accrue therefrom. But where, in the lifetime of the testator, a division was made between him and his two brothers of their father’s real estate, which was acted upon by him in his lifetime by taking possession of the part allotted to him, and was also confirmed and ratified by him at the time of making his nuncupative will, the validity of such division was recognized in a court of equity.
    Same — Construction of — Case at Bar. — A testator, by a nuncupative will, gave to his wife certain slaves and articles of personalty, “exclusive of the portions of his estate she would be entitled to as his widow under the law.” His wife being pregnant, he said he wished his estate to be ‘kept together and managed by his brothers for the benefit of his wife and child during her widowhood, and in the event of her marriage he wished them to manage the child’s part of the estate. If the child should live, and then die under age without lawful issues, he wished his brothers .to have the whole of his estate in equal portions, except the slaves and articles specifically given to his wife. The child died in ten days after his birth, living the testator’s brothers, who were the next of kin of the testator and of the child. Held, that by the true construction of the will, the testator intended that his wife should have in absolute ownership the slaves and other personal property specifically bequeathed to her, together with her legal rights in his estate as his widow, and nothing more: that the child inherited the real estate, subject to the widow’s right of dower therein, and was entitled under the will (after payment of debts) to the slaves not specifically bequeathed, subject to the widow’s life estate in one.third thereof, and to distribution with the widow, in conformity to law, of the other personal estate not specifically bequeathed: and that, upon the death of the child, his interest in the real estate descended to his paternal uncles, and his interest in the slaves and other personal property passed to them under the executory bequest in their favour contained in the will.
    Mann Page died seized of land in Hanover, and after his death a tract of land in King William, called Marshalls, was purchased and paid for out of money 426 - which *came to the hands of his executor. He left three children, Robert Page, Charles C. Page and John P. Page, who were entitled to have these lands divided between them. In the latter part of 1828, these children (all of whom were then above 21 years of age) requested three gentlemen to make the division, suggesting that the Hanover land should be divided into two parts, and the King William land make the third part. A plat of the Hanover land being- laid before the gentlemen, they made the division, and directed that one part of the Hanover land, with the house on it, should receive ISO dollars from the child who should draw Marshalls, and the other part of the Hanover land, called Gilliams, should receive from Marshalls 450 dollars. The parties then proceeding to draw, Robert Page drew Gilliams, Charles C. Page drew the other part of the Hanover land having the house on it, and John If. Page drew Marshalls. With this result all were satisfied; and in the beginning of 1829, John P. Page took possession of Marshalls, and from that time made in his residence.
    John P. Page was taken sick from home on the l7th of Pebruary 1833, when he was at Mansfield the residence of Thomas Atkinson in the county of Dinwiddie; and he died on the 4th of March 1833, without having returned to his habitation. In the time of his sickness, to wit, on the 24th of Pebruary 1833, he made a verbal disposition of his estate. And on the 28th of that month, the substance of what he said was committed to writing, as follows :
    “We whose names are hereunto subscribed do certify that John P. Page of the county of King William, who is now extremely ill at the house of Thomas Atkinson in the county of Dinwiddie, called upon us on the 24th day of Pebruary 1833, and said, as he was too sick to have a will written and executed in the customary way, he wished, in the event of his death from the present illness, his property disposed of as 427 follows. *To his wife Catharine Page he gave his negro man Jemmy, woman Ducy, and a washerwoman to be hired by his brothers for the exclusive use of his wife, until one could be purchased by his brothers with convenience to his estate^ which when purchased he also gave to his said wife. He said also, he gave to his wife his carriage and horses, and all his household and kitchen furniture; which negroes, carriage, horses and furniture he gave, and wished his wife to have, exclusive of the portions of his estate she would be entitled to as his widow under the law. The said John P. Page at the same time mentioned that his wife was pregnant; and that he wished his estate to be kept together and managed by his brothers, for the benefit of his wife and child, during his wife’s widowhood, and in the event of his wife’s marriage, they his said brothers to manage his child’s part of the estate. The said John P. Page said at the same time, that he confirmed and ratified the division of his father’s estate, both real and personal, among his brothers and himself, as it was made by the surveyor and gentlemen commissioners who divided it at their request. The said John P. Page also said, that if the child his wife was now pregnant with should live, and then die under age without lawful issue, he wished his brothers Robert and Charles Page to have the whole of his estate both real and personal, in equal portions, except the servants, carriage and horses, and furniture, specifically given- to his wife as before mentioned. And then the said John P. Page said to one of the undersigned, he wished him to commit to writing what he had said concerning the disposition of the estate, and the same to be taken and published, in the event of his death, as his nuncupative will. Witness our hands, at Mansfield, this 28th day of Pebruary 1833.
    Thomas Atkinson,
    JST. T. Page.’’
    428 *On the22d of April 1833, this writing was produced in the court of King William county, and ordered to be filed; and the widow of the decedent was directed to be summoned to the next court, to contest the will. The summons which issued was returned with an endorsement signed by the widow, stating that she acknowledged service of the summons, and did not intend to contest the will. On the 22d of July 1833, “the foregoing depositions of Thomas Atkinson and N. T. Page, purporting the nuncupative will” of the said John P. Page, were established by the court as his will, and ordered to be recorded. And administration with the will annexed was thereupon granted to Charles C. Page.
    The posthumous child having died within ten days after its birth, a bill was filed by the widow in March 1835, in the circuit court of King William, insisting that the noncupative will was not legally admitted to record, because the witnesses Atkinson and Page did not testify orally in court to the supposed testamentary words, or their import, nor were their depositions taken, either in or out of court, to establish the same, but they merely proved, as the nun-cupative will, the paper filed in court as aforesaid.
    In May 1835, on the motion of Charles C. Page as next of kin of the decedent, a summons was again awarded against the widow by the county court, to contest, if she pleased, the proof of the nuncupative will. This summons being returned at the June term, and appearing to have been executed upon her, Thomas Atkinson and N. T. Page were then sworn in court, and deposed, that upon the 24th of Pebruary 1833, at Mansfield, at the house of Thomas Atkinson in the county of Dinwiddie, John P. Page did call upon the said deponents, and say in substance as follows: “As he was too sick” &c. (stating, in the precise terms of the writing first admitted to pro-bat, every thing therein contained; except only, that instead of concluding in 429. the terms of *the writing, “And then the said John P. Page said to one of the undersigned, he wished him to commit to writing” &c. these depositions concluded with the statement, “And then the said John P. Page said to the said Thomas Atkinson,” &c.) It also appeared to the court, by the oath of the said Thomas Atkinson and N. T. Page and of John C. Pollard, that the above testimony of Atkinson and JST. T. Page, or the substance thereof, was committed to writing within six days after the said words were spoken by the said John F. Page, to wit, on the 28th day of February in the year 1833, at Mansfield in the county of Dinwiddie aforesaid, which writing is in the words and figures following, to wit: “We whose names are hereunto subscribed” &c. (reciting it). The court, having heard the testimony of the said witnesses and of sundry others, was of opinion that the said words deposed to as aforesaid, and committed to writing as aforesaid, were used by the said John F. Page deceased in his last sickness; that at the time of speaking said words, he was of sound and disposing mind, and of capacity to make a will; that he was suddenly taken sick from home, at Mansfield, at the house of Thomas Atkinson in the county of Din-widdie, and died there without returning to his own habitation in the county of King William, never having left Mansfield between the time he was taken sick and his death ; that during his last illness, in extremity, and in contemplation of immediate death, he spoke the said words, and called on Thomas Atkinson and N. T. Page to take notice that such words were his will; and that after speaking the said words, he desired Thomas Atkinson to commit to writing what he had said concerning the disposition of his estate, to be published, in the event of his death, as his nuncupa-tive will. Whereupon it was ordered that the said nuncupative words be established as the true last will of the said John F. Page, and thac the same be recorded.
    430 *By the original bill in the suit in the circuit court, the first sentence of the court of probat was impeached by the widow, upon the ground that she had been prevented from making her defence in that court by fraud. And now, by an amended bill, she impeached the second sentence, upon the ground of her having been prevented from making her defence by accident. And the said bills alleged, that at the time of speaking the supposed testamentary words, the decedent was not of sound and disposing mind and memory; that he was not then (in contemplation of law) in his last sickness; and that the formalities of the law were not observed in reducing the will to writing, and in proving the same. It was insisted by the original bill, that real estate could not pass by a nuncupative will, and that the ratification by the nuncupative will of the division therein mentioned was invalid. The original and amended bills also submitted to the court the interpretation of the said will, in case the same should be established.
    The next of kin of the decedent and of his child being Robert Page and Charles C. Page, they were made defendants, the former in his own right and as administrator de bonis non of Mann Page, and the •latter in his own right and as administrator with the will annexed of John P. Page. They put in elaborate answers, denying the allegations whereby the will was impeached; insisting that the division of their father’s real estate, having been fairly made, acted upon by the said John F. Page in his lifetime, and sanctioned by him in his last moments, ought not to be disturbed; and submitting their views as to the proper interpretation of the will.
    Depositions were taken in the cause, from which it appeared, that the decedent had an attack of pleurisy, and the symptoms, on the 23d of February, were those usually seen in a severe attack of that disease; but about 8 or 9 o’clock the next morning, his fever had abated, and the symptoms of the disease become mitigated. 431 *Charles Page went that morning (being Sunday) to church in Peters-burg, which was about 5 miles from Mansfield. While attending church, he was sent for in consequence of a change in the disease for the worse, and reached Mansfield between 12 and 1 o’clock. The will was made about 1 o’clock, and the decedent was then perfectly in his senses. The physicians who had been sent for at the same time that Charles Page was sent for, did not reach Mansfield until between 4 and 5, and he was then much worse. He remarked to the physicians, that his friends had become very much alarmed and thought he would die, but he did not think he would. One of the physicians, however, deposed that he was then incapable of dictating a will, and the other said he thought it doubtful whether he would survive the night or not. But the next morning (monday the 25th) the symptoms had improved, and he was perfectly in his senses; and he was in his senses at intervals every day between the 24th and the day of his death, being usually better in the morning and worse in the afternoon, when his fever rose.
    Pending the suit, Robert Page and Charles C. Page both died. As to the former, the suit was allowed to abate; it was revived against the executor, widow and child of the latter.
    The cause having been removed by consent to the circuit court of Hanover, came on first to be heard on the bills, answers, exhibits, and examination of witnesses, and certain accounts were then directed. Upon the coming in of the commissioner’s report, the case was again heard, and a decree made the 12th of October 1838, whereby the noncupative will was established, and the division therein mentioned confirmed. And the court adjudged and declared, that according to the true construction of the will, the plaintiff was not only entitled to the specific legacy therein bequeathed to her, (all of which it was admitted she had received, except 432 *'the washerwoman directed to be purchased for her) but that the child of the testator being dead, she was entitled to the whole profits of the estate, real and personal, so along as she remained the widow of the testator, and from and after her marriage, to her legal rights in the estate as if he had died intestate, to which end the estate was by the will to be kept together.
    On the petition of the representatives of Charles C. Page, an appeal was allowed.
    Daniel for appellants.
    The object of the testator was to leave the widow to her legal rights, with the addition of certain specific legacies mentioned in the beginning'of the will. The clause directing the estate to be kept together and managed for the benefit of the wife and child during her widowhood, if construed to give an estate during widowhood to the wife, would be inconsistent with the executory limitation to the testator’s brothers in the event of the child’s death under age without lawful issue.
    The court has allowed the widow, during her widowhood, the whole estate, real as well as personal. Even if that had been the intention of the testator, it could not be effected by a nuncupative will; for such a will can create no interest in lands, much less an estate of freehold therein, which would be imported by a gift of the profits during widowhood. 1 Tho. Co. Lit. 200.
    Lyons for appellee.
    There was no valid will. A nuncupative will made in the commencement of a disease, of which the testator ultimately dies, but dies after a considerable time has elapsed, and after rallying from time to time, so as to be perfectly capable from time to time of making a regular will in writing, is not made in the last sickness contemplated by the statute. To render a nuncupative will valid on the ground of its being made in the testator’s last sickness, it must be made in the sickness of which he dies, and there must 433 *afterwards be no such recovery (total or partial) as may leave him capable in mind and body of executing a will in writing. The statute contemplates cases of necessity, of inability to make any other than a nuncupative will, and ought not to be extended beyond cases of that character. Prince ,v. Hazleton, 20 Johns. 502. The cases of Weéden v. Bartlett &c., 6 Munf. 123, and ' Winn v. Bob & others, 3 Leigh 140, though not precisely in point, may be referred to as confirmatory of the same principle. The testamentary words must also be uttered by the decedent in the prospect and contemplation of approaching death. The cases establish that the proximity of death, in point of fact, at the time of the testamentary words spoken is not sufficient, unless the testator was aware of and believed such proximity. And here the evidence does not shew such consciousness and expectation on the part of the testator, but the contrary. Then as to the two sentences of the court of probat. The first of these was plainly invalid. And the second was after six months from the time of speaking the testamentary words. Then the enquiry arises, whether the testimony, or the substance thereof, was committed to writing withiti six days after making the will. 1 R. C. 1819, p. 377, $ 8. The words spoken were' so committed to writing; but they are only a part of the testimony required by the statute to be put in writing. The testator must be of sound mind. He must call on some person present to take notice that such is his will. And the words must be spoken in tne time of the last sickness, and in contemplation of death. These matters are indispensable to be proved, and the statute requires that the proof of them, the testimony respecting them, should be reduced to writing, as well as the testamentary dispositions. But all this part of the testimony is omitted in the writing.
    II. A nuncupative will, it is admitted, cannot control the profits of real estate, 434 any more than it can pass the *land itself. But so far as the will could pass the estate of the testator, the decree adopted the true construction. What is there in this will to countenance the idea, that in the event of the child’s death under age and without issue, the widow is to be stripped of all provision except the specific bequests? Yet that is the inevitable result of the argument which denies that the wife took an estate during widowhood in all the property which the will was competent to pass. For the limitation to the brothers, according to the terms of the will, must operate (in the contemplated contingency) upon all the testator’s estate except the specific legacies to the widow; no more saving her share as distributee, than her supposed estate during widowhood. Such cannot be the meaning of the testator, because he has declared his intention to be not to give the widow less, but to give her more, than the law would allow in case of intestacy.
    III. If the agreement between the three brothers for partition of the lands was not an agreement executed at the date of the nuncupative will, but merely executory, then the will could have no influence on it, since a nuncupative will cannot affect the title to lands; and the widow is entitled to her distributive share of the decedent’s money invested in the tract called Mar-shalls. [Stanard, J.. A nuncupative will may operate to convert money into land, because it may dispose of money.] However that may be, it cannot have the effect of substituting a dower interest of the widow in place of an absolute property in her distributable share.
    Daniel in reply.
    According to the interpretation of the statute by this court, the will was made in the last sickness of the testator, and in contemplation of death. Marks and wife v. Bryant, 4 Hen. & Munf. 91. And it is plain that the meaning of the legislature was merely to require the testamentary words to be reduced to writing within the six days; not to re-435 quire that the ^testimony as to the decedent’s sanity, his intelligent and voluntary action, and the other particulars proper to be proved in court, should also be put in writing. What would be the use of such a requirement?' And if there be any use, why was not a similar requirement made in the case of written testaments?
    But it is too late for the widow to contest the validity of the will. She renounced all purpose to contest the probat, failed to appear though duly summoned, and the pro-bat was in truth at the joint instance of herself and the other parties. She also accepted and enjoyed the legacies given her by the will, and never thought of a contest about the will until after the death of the child. This combination of circumstances would preclude her from a contest now, even if the will had been proved in common form merely. But the will was proved in the form in which, under the statutes of Virginia from 1748 to the present time, nuncupative wills have always been proved. 5 Hen. Stat. at large p. 4S7, 1 11; 1 R. C. 1819, p. 379, (j 18. That proof is very different from what is allowed in the case of written wills. The statute respecting pro-bat of written wills authorizes the court to take the proof immediately, requiring no citation of the next of kin: the statute respecting nuncupative wills does provide for a citation of the parties interested, and invalidates the probat unless that provision be complied with. There is no reason for applying to the latter the statute in 1 R. C. 1819, p. 378, 'i 13, allowing bills in chancery to contest the validitj' of wills. And this statute should therefore be restricted to cases in which the probat may be in law, and has been in fact, ex parte and without notice; cases, namely, of wills in writing. In England, when a testament of personals is proved in solemn form after citation of the next of kin and distributees, they are in general precluded by such probat — “ forever barred.” 1 Wms. on Ex’ors 194. And the probat here of a noncupative 436 *will, being what is considered in England a probat in solemn form, a bill in chancery ought not to be allowed after such probat, unless upon some ground of fraud or accident alleged and proved by the complainant. Nor is it at all material as to the first probat, whether it was strictly formal and regular; it is binding nevertheless, being the definitive sentence of a court of competent jurisdiction, never reversed or appealed from.
    II. He contended that the true construction of the will was such as he insisted upon in opening. And III. as to the tract called Marshalls, he said, if the division could now "be impeached, no division among heirs, not carried out in the most formal manner by deeds of partition, could ever be valid and obligatory. Besides, he remarked, if the division could be treated as a nullity,, the testator’s estate must be responsible for the rents and profits of the land during all the time he held it.
    
      
      Nuncupative Will — Validity—Intention.—It is essential to the validity of a nuncupative will, that it should appear, that the deceased, at the time he spoke the alleged testamentary words, had a present intention to make his will, and spoke the words with such intention, and should distinctly indicate that intention, by calling upon persons present to take notice or bear testimony that such is his will, or by saying or doing something tantamount in substance, indicating plainly that the words spoken were designed to be testamentary. Winn v. Bob, 3 Leigh 140, 23 Am. Dec. 258. See Phoebe v. Boggess, 1 Graft. 129, and note.
      
      See Va. Code 1887, § 2516 ; W. Va. Code 1899, ch. 77, § 5, p. 706.
      Same — Sufficiency of Testamentary Words. — Proof by one witness, that, on a certain day, in the time of the last sickness of the deceased, and at his habitation, he said it was his wish that a certain person should heir all his property ,• and, by a second witness, that on another day, during the same sickness, and at the same place, he heard the deceased speak the same words, and was told by him to take notice vfwJiat he said, is not sufficient to establish a nuncu-pative will, if the value of the personal property of the deceased exceed thirty dollars. Weeden v. Bartlett, 6 Munf. 123.
      Same — Where Made — Habitation.—When a nuncu-pative will was not made at the habitation of the deceased, nor where be bad resided for ten days next preceding, but was authenticated as the law requires, it was held that the will ought to be established, notwithstanding his having been very unwell when he left home, if, afterwards, he was taken more dangerously ill. and died at the place where the will was made. Marks v. Bryant, 4 Hen. & M. 91. See also, Nowlin v. Scott, 10 Graft. 65.
      Same — Meaning of “Habitation ” — It was held in Nowlin v. Scott, 10 Gratt. 64, that the word “habitation” in the act of 1 Rev. Code, ch. 104, § 7, p. 377, in relation to nuncupative wills, means “dwelling honse.”
      Same — “Last Sickness.’’ — The principal case is cited in Reese v. Hawthorn, 10 Gratt. 553, 554.
      Same — Same.—A nuncupative will to be valid must be made in the last sickness of the testator, when he is in such extremity that he has not the ability and opportunity to make a written will. Reese v. Hawthorn, 10 Gratt. 548. See Marks v. Bryant, 4 Hen. & M. 91.
      Same — Omission of Part of Verbal Declaration — Effect. — Although in committing a nuncupative will to writing, within six days from the speaking of the testamentary words, a distinct and independent part thereof may be omitted, the residue of the will is not thereby vitiated. Marks v. Bryant, 4 Hen. & M. 91.
    
   BAEDWTN, J.,

delivered the following as the opinion of the court:

The court is of opinion that the act of assembly authorizing wills admitted to probat to be contested by a bill in chancery at any time within seven j’ears thereafter, applies only to written, and not to nuncupa-tive wills; and that the nuncupative will in question having been admitted to probat by a court of competent jurisdiction, after the appellee had been regularly summoned by its process to appear and contest the same, if she thought proper so to do, the sentence of the court of probat was binding upon her, and could not be impeached, except by appeal therefrom, or by a bill in equity founded upon her having been prevented by fraud or accident from making her defence in the court of probat. - And the court is further of opinion, not only that the appellee was not prevented by fraud or accident from contesting the said will in the court of *probat, but moreover that it clearly appears from the evidence in this cause, that the same was made by the testator in his last sickness, when he was of sound disposing mind and memory, and with the solemnities required by law. The court is consequently of opinion that there is no error in the decree of the circuit court, so far as the same sustains the validity of the said nun-cupative will, and the sufficiency of the probat thereof, whether regard be had to the first or the last sentence of the court of probat: and is also of opinion that there is no error therein in recognizing the validity of the division made between the testator and his two brothers of their father’s real estate, and the allotment to the testator of the place called Marshalls, and his accountability for his due share of the balance of the purchase money thereof. But the court is of opinion that the said nuncupative will was of no effect in law in relation to the testator’s real estate, or the profits to accrue therefrom ; and that, by its true construction, the testator intended that his wife should have in absolute ownership the slaves and other personal property specifically bequeathed to her, together with her legal rights in his estate as his widow, and nothing more. And the court is further of opinion that the testator’s posthumous child inherited his real estate, subject to the widow’s right of dower therein, and was entitled under the will (after payment of debts) to the slaves not specifically bequeathed, subject to the widow’s life estate in one third thereof, and to distribution with the widow, in conformity to law, of the other personal estate not specifically bequeathed: and that, upon the death of said child, his interest in the real estate descended to his paternal uncles, Robert and Charles C. Page, and his interest in the slaves and other personal property passed to the said Robert and Charles C. Page, under the executory bequest in their favour contained in said will. The court is therefore of opinion that the *said decree of the circuit court is erroneous, so far as the same is incompatible with the rights of the parties as above expressed, and so far as the same gives costs to the appellee, instead of the appellants: and in these respects it is considered by the court that the said decree be reversed and annulled, and that the appellants recover against the appellee their costs by them expended in the prosecution of their appeal aforesaid here. And the cause is remanded to the said circuit court, for assignment to the appellee of her dower in the real estate, including Marshalls, after setting aside the order of abatement as to the defendant Robert Page, and reviving the suit against the representatives of his real estate; and for further proceedings in conformity with the views above declared, after a revival of the suit against the executor or administrator of the said Robert -  