
    George W. Parkison et al. vs. Thomas J. Parkison.
    The object of the statute in relation to nuncupative wills, which requires that to prohate such a will, it must “ be proved by two witnesses, that the testator called on some person present, to take notice or bear testimony that such is his will, or words of the like import,” is to establish by two witnesses that the animus testandi existed; it does not require that it must be proved, that the testator called on the two witnesses, to take notice that it was his will; or that he called on them to witness that he called on some person present to take notice that such was his will; it is only necessary that they be witnesses to the fact, that one present was called oh by the deceased, to take notice of, or bear testimony to such being his will; or words to that effect.
    P. being dangerously ill, expressed to his medical attendant his desire to make his will, to which his physician replied, that he did not think he could survive long enough to have one written, hut that two persons, naming them, were present, competent witnesses, to whom he could state what disposition he wished made of his property; upon this, without other remark, P. stated his testamentary wishes ; the physician then'left the room, hut soon returned, and stated to P. that his will would not probably be valid, unless he named his other brothers, whereupon the deceased said in the presence of the same two witnesses, that he would give them each five dollars; soon afterwards a memorandum of P.’s wishes was drawn up by the physician, and signed by ■ him and the two witnessess, hut not read to the testator; held, on proof of these facts, that it was a good nuncupative hill, and should have been admitted to probate.
    The memorandum, however, not having been read to the deceased, nor approved by him, was too imperfect to have been established as a written will.
    On appeal from the probate court of Yalabusha county; Hon. John J. Choate,-judge.
    The following instrument in writing was presented :
    
      “ James Parkison’s last will and testament verbally made before the undersigned.'
    1st. He wishes his wife, Mary A. Parkison, to have all the property, both real and personal, which was hers before he married her.
    2d. He wishes the balance of his estate to be equally divided between his brother George W. Parkison and his nephew Rice L. Parkison, after giving to his brothers, Thomas J. Parkison, Richard Parkison, William Parkison, Marcus L. Parkison, and his sisters, Sarah, Frances, and Susan, each five dollars.
    
      
    
    Dr. Daniel Stanford, as a witness, in behalf of said will, deposed, that “ I was, on the 19th of March last, at the house of James Parkison, in this county; that I was in his presence a few minutes at ten o’clock in the morning, and returned there about three in the evening, and remained in or about the house until he died. Late in the evening I had a conversation with him about the probability of his dying soon. He thought he would not recover. I stated to him that he probably would not live till morning, and asked him some questions in reference to his preparation for death. A few minutes after this, he and his wife had a few words of conversation, which I did not understand. Immediately after which, she said to me that Mr. Parkison desired to know of her if-she wished to have her property separated from his. I immediately approached the bedside, when he repeated the same question. She replied, my dear, what do you think best % He remarked, that he thought it would be best to do so. He remarked, to me immediately, that he wished his wife to have all the property that she had before he married her, and wished the balance of his property to be divided between his nephew, Rice L. Parkison, and Rice L. Parkison’s father. I left the room, and in a short time Mr. Cham-berlin came to me with a request to go to Mr. Parkison, as he wished to make a will. When I approached Mr. Parkison’s bed, he stated to me, that he wished to make his will. I told him that he was going much faster than he expected, and that what he had to do he had better do it quickly. I thought at the time that he wished me to write his will in a regular form, but I did not think that he would be capable of transacting business long enough for me to do so, as I write slow and clumsily. I then said to him, here are Mr. Spring and Mr. Chamberlin, who are competent witnesses, and to state to them what disposition he wished to make of his property. He immediately stated, that he wished his wife, Mary A. Parkison, to have all the property which she had when he married her, and that he wished the balance of his property to be divided between his brother, George W. Parkison, and his nephew, Rice L. Parkison. I left the room soon after, but returned in a few minutes, and informed him, that his will would not probably be a legal one, unless he named his other brothers and sisters, and gave them something. He then called their names, and said that he would give them five dollars each. A few minutes after this I made a written memorandum, which was signed by himself, Mr. Spring, and Mr. Chamberlin, and which is the paper now before the court purporting to be the nuncupative will of James Parkison. This occurred between nine and ten o’clock at night. I considered him at that time of sound mind and disposing memory; he lived until after midnight; he died at his own house in this county. I do not believe he ever saw the written memorandum, or heard it read after it was signed. At the time of his naming his brothers and sisters, he made some appeal to Rice L. Parkison, in reference to the name of some one of them. -1 was not his attending physician. His nephew, Rice L. Parkison, was overseeing for him at the time, and living with him at his house. His words in expressing his will were clear and distinct.”
    Upon cross-examination, — “I state that I do not believe Mr. Parkison ever knew that the memorandum was written or signed by any one, and further state that Mr. Parkison was gradually declining, but don’t think there was any material change from the time that he spoke the words and the time the memorandum was written and signed.”
    John F. Spring states, that he was at the bedside of the deceased when the words were spoken that are written in the will presented now for probate. When he spoke the words he did not hear him call on any one to bear witness of what He was about to say; that if he had been alone, he would not have considered himself called upon by Mr. Parkison as a witness. It was in consequence of Dr. Stanford’s remarks, that “here were Mr. Spring and Mr. Chamberlin, competent witnesses, standing by,” and Mr. Parkison then speaking the words in his hearing, that he considered himself a witness; and Dr. Stanford’s suggestion, that he signed it as such. He said that the name and signature were his. The other part of his testimony agrees with the statement of previous witness; and on cross-examination, he states that the deceased did not call on him to take notice or bear testimony that such was his will, nor use language of like import, with a view to make him witness to said will.
    Alexander H. Camberlin’s testimony was the same as that of the other witnesses. He states, that when Mr. Parkison spoke the words, he was of sound disposing mind and memory. That when naming his brothers and sisters he (Mr. Parkison) asked Rice the name of another or named the other, and asked Rice if he was correct. There Was no witness called, as,he heard, by Mr. Parkison. No person was called upon, in my hearing, to witness the will. Mr. Parkison did not request me to sign the paper, or to be witness.
    On cross-examination, states, that he esteems himself a witness, because Dr. Stanford named his being present, and being a competent witness, and hearing the words spoken by Mr. Par-kison immediately after.
    
      Acee, for appellant,
    Cited H. & H. 387, sec. 6, 7, 8; Marks and Wife v. Bryant and Wife, 4 Hen. & M. 91; 1 Swinb. on Wilis, 38, ch. 12; Shep. Touch. 355; 1 Will, on Ex. 64; 1 Lomax on Ex. 36, 37; Swinb. on Wills, pt. 1, sec. 12; Mason v. Dunman, 1 Munf. 456; Baker et al. v. Dodson, 4 Humph. 342; Philips v. Parish St. Clements, 1 Eq. Cases Abr.; 3 Mer. 163; 4 Wash.. C. C. R. 466, 467 S 9 Conn. R. 102;.2 B. Mon. 74; 8 Mass. 371.
    
      Fisher, for appellee,
    Cited Chilton’s Prob. Court Law and Prac. 55; H. & H. 387.
   Mr. Justice Thacher

delivered the opinion of the court.

The probate court of Yalabusha county refused to admit to probate a certain instrument in writing purporting to be the nun-cupative will of James Parkison, deceased.

The facts were as follows: James Parkison died at his own house a little after midnight of a certain day. About three o’clock, P. M. previous to his death, Dr. Daniel Stanford arrived at his house. Late in the same evening Dr. Stanford informed him that he probably would not live till the next morning. Soon after he and his wife had some conversation about the disposal of his property, and Dr. Stanford retired from the room in order to afford them a free opportunity to converse. Upon his return, in a few minutes, the deceased stated to him that he wished to make his will. Dr. Stanford testifies that he understood him to mean that he wished him to write his will in regular form, but, believing him to be'sinking very fast, he informed him that he did not think he could live long enough for that purpose, but that Mr. Spring and Mr. Chamberlin were present, competent witnesses, to whom he could state what disposition he wished made of his property. Upon this, and without further remark, the deceased stated his testamentary wishes. Dr. Stanford then left the room, but soon returned and stated to the deceased that his will would not probably be good and valid, unless he named his other brothers; whereupon he said, he would give them each five dollars. This also occurred in the presence of Mr. Spring and Mr. Chamberlin. At the time, a memorandum of the testamentary wishes of the deceased was taken in pencil by Dr. Stanford, which was afterwards written in ink, and signed by himself, Spring and Chamberlin, but the memorandum was not seen by the deceased, nor was it read to him. Mr. Spring testifies that he was present when the deceased said that he wished to dispose of his property, and wished Dr. Stanford “ to fix it.” He further testifies, that he did not hear the deceased call on any one to witness what he was about to say, and that it was only in consequence of Dr. Stanford’s remark, that “ here were Mr. Spring and Mr. Chamberlin, competent witnesses, standing by,” and the deceased then speaking the words in his hearing, that he considered himself a witness. In other respects, Mr. Spring corroborates the testimony of Dr. Stanford. Mr. Cham-berlin proves that the deceased desired Dr. Stanford to make or draw a will for him; and in other respects confirms the testimony of Dr. Stanford and Mr. Spring.

There is sufficient proof that the deceased was of a sound mind and disposing memory at the time of this transaction.

The only point presented is, whether the statutory requisite to establish a nuncupative will, to wit, that, “it be proved by two witnesses that the testator called on some person present to take notice or bear testimony, that such is his will, or words of the like import,” is complied with in this instance.

In the first place, the memorandum taken by Dr. Stanford not having been read to the deceased, nor approved by him, is too imperfect to be established as a written will. Mason v. Dunman, 1 Munf. 456.

In one point of view there was a literal compliance with the statute, for, both Spring and Chamberlin testify that the deceased wished Dr. Stanford to make his will, and immediately afterwards, in the presence and hearing of those witnesses, he made a statement to Dr. Stanford of his testamentary wishes and intentions. But the main object of the special requirement of the statute to bear witness, the rogatio testium, is to distinguish between a testamentary act by one in extremis, and loose declarations and casual conversations as to the disposition of his property, and to prevent the latter from being passed off as testamentary. The statuté does not require the testator, if he may so be styled, to call upon the two witnesses to take notice that such is his will, nor to call upon them to witness that he calls upon some person present to take notice that such is his will. . They need but testify to the fact, that the testator called upon some person present to take notice, hear testimony, or otherwise be informed and understand that such is his will. 'What then is the design of the statute more than to.establish by two witnesses that the animus testandi existed in the mind of the person at the time he is supposed to have called upon a person present to bear witness to his disposal of his property; to distinguish between his own deliberate testamentary wish and intention and the wish of those who surround the person so in extremis. ■

In this case the testamentary capacity of the deceased, his animus testandi at the time of the alleged nuncupation'^ clearly shown. The deceased wished to make a will; he wished Dr. Stanford to make it; he proceeded to make his testamentary, disposal of his property after he was informed by Dr. Stanford of th'e shortness of the time probably left to him to live; and he thought himself making a will. These facts are established by the witnesses. We think it a good nuncupative will, such as was entitled to admission to probate.

The decree of the probate court is reversed, and the cause' remanded with directions to that court to receive the said will to probate.  