
    Marks and Wife, &c. v. Bryant and Wife.
    Monday, 1st May, 1809.
    
      n. Appeals — Wills—Probate—Original Paper Should Be Produced. — In every case of an appeal in a controversy concerning- the probate of a will, the original paper exhibited for probate ought to be brought before the appellate court, by writ of subpeona duces tecum: if such paper cannot be had. the order admitting it to record, or rejecting it. ought neither to be affirmed nor reversed; but the appeal should be dismissed.
    -3. Nuncupative Wills — Where Made — Habitations.—A nuncupative will not made at the habitation ot the deceased, nor where he had resided for ten days next preceding, but authenticated as the law requires, ought to be established, notwithstanding his being- very unwell when he left home; if, afterwards, he was taken more dangerously ill, and died at the place where such will was made.
    ,3. Same — Omission of Part When Committed to Writing— Bffect upon Residue. — Although in committing a nuncupative will to writing, within six days from the speaking of the testamentary words, a distinct and independent part thereof be omitted, the residue of the will is not thereby vitiated.
    .4. Same Testamentary Capacity. —A testator’s bequeathing (among other things) an article of property which does not belong to him, is, at most, •only a circumstance from which to infer a state •of mind unfavourable to the making of a testament: and ought not to prevail against positive testimony, showing his competency to make a will at the time in question.
    This was a controversy concerning- the establishment of the nuncupative will of Travis Womack, deceased. John Mars and Patsy his wife, and Polly Titmarsh were the legatees interested in establishing the will; and, at their instance, Thomas B. Bryant, and Sally his wife were summoned to Prince George County Court, September ■term, 1804, to shew cause, if any they could, against its being admitted to record. The County Court, on hearing the parties by -counsel, and the testimony on both sides, being of opinion “that the nuncupative words of Travis Womack, deceased, which were committed to writing within six days after the speaking thereof were, by the said Womack used in his last sickness, and that he was taken sick from home, and that he died before he returned to the place o£ his habitation; and also, that he called on Edward Marks, jun. and Jemima Simmons, then present, to take notice that such words were his will; ordered the said words to be established as the nuncupative will of the said Womack, and that the same be recorded;” from which decision Bryant and wife appealed to the ^District Court of Petersburg, where the said order was reversed without assigning any reasons; and thereupon Marks and wife and Polly Titmarsh appealed to the Court of Appeals. The record being opened here, it appeared that a copy of the writing exhibited as a memorandum of the nuncupative words was inserted; but the original will was not sent to this Court. A subpoena duces tecum to bring up the original (directed to the Clerk of Prince George County Court) had been awarded prior to the present term; but the paper had not been produced.
    Hay, for the appellees,
    insisted that the original must be produced. Unless the will itself were before this Court, it cannot hear witnesses; for, in order to decide correctly in its appellate capacity it must have the same document before it which was exhibited to the Court below. If it must take up the subject on the same grounds as the Court below, the inference is irresistible. The will in this case was once in the custody of the Clerk of Prince George, but is now lost. The only remedy to set up a lost will is in equity; the invariable practice being to bring a-suit in Chancery, in such cases. Its having been recorded in Prince George is of no avail; for that judgment (being reversed) is now as if it never had existed. If the judgment of this Court should be that the will be admitted to record, how can this be done unless the paper itself be produced? In the cases of Bates v. Holman,  and Temple and Taylor v. Temple,  the original wills were seen and inspected; and such has been the uniform usage of this Court. The language of the law,  “when any will shall be produced for probat,” cannot be satisfied by any thing but the production of the original.
    George K. Taylor, for the appellants,
    said that, if the original ought to be before the Court, his clients were not to blame for its non-production. As to the loss of the will, *this Court is trying the cause on the record. The will was admitted to record, and entrusted to the Clerk to be safely kept at his peril. There is no certificate from him that it is lost; neither is it certain, from any thing judicially appearing, that such is the case. The only inquiry then is, whether it is, in all cases, necessary for this Court to have the original will before it. Where it is suggested that the original would throw any light on the subject, (as by interlinea-tions, erasures, &c.) the Court will require it; but, where there is no such suggestion, it is unnecessary and unusual. In the case of Richard Squire Ta3rlor’s will, the original was sent for, because it was suggested that the appearance of the paper itself would show the incapacity of the testator. So in Bates v. Holman, inspection of the paper itself was all Important: but in this case no ray of information would be received by the Court from seeing the original.
    Hay. Mr. Taylor has very ingeniously varied the aspect of the cause. He says there is no evidence that the will is lost. If so, then I call upon him to produce it. But he asserts there is nothing in this will which may not be seen on the record. How is that known? We wish the original will to be seen, for this purpose. It will appear that the person who wrote it was so ignorant of orthography, or language, that he actually made some words. The production of the paper itself may afford very material facts to enable the Court to judge of the ability of the writer to certify correctly the terms of the will. Suppose the paper were written with ink of different colours, and with different hands. These circumstances might weigh; and the consideration that such circumstances might exist, shows the propriety of introducing the original on all occasions, that the Court may determine upon its face.
    Taylor. Why did not Mr. Hay move for a subpoena duces tecum to bring up the original, if he wanted it?
    JUDGE TUCKER observed, that the party appellant was bound to produce the paper, if required. The Court and ^witnesses ought to inspect the very paper. The proper course probably is to direct a subpoena duces tecum to the Clerk of the District Court; for he ought to have retained it in his office. My opinion is, we should proceed no further, at present, until the original paper be produced, or the subpoena be returned.
    JUDGES ROANE and EEEMING wished to take time to consider the point; and by consent the witnesses were examined.
    The substance of the evidence (which, according to the rule of this Court, was taken down in writing in open Court) was, that the testator, being a young unmarried man, and boarding with a Mr. Gary, at City Point, left that place the Sunday before his death, on a visit to his only sister, the wife of Bryant, the appellee; that he was then very ill, “his disorder having begun with o the ague and fever, and, from that, turned to a constant fever and sore throat;” that he rode to Bryant’s, a distance of twelve miles, and there growing worse, (with the subsequent symptom of a disorder in his bowels,) died on the following Sunday; that he had been delirious, at times when the fever was on him, before he left City Point; and, after his arrival at Bryant’s, was frequently delirious, both before and after his speaking the testamentary words; but was in his senses at the time of speaking them, which was in the presence of Edward Marks, Henry Simmons and Jemima Simmons, (who all concurred in their testimony as to this point,) and of the three appellants; Bryant and wife not being present; that he called on all the persons present to take notice that what he had said was his will; (as to which circumstance Edward Marks and Jemima Simmons agreed, though Henry Simmons did not recollect it;) that he gave to his cousin Patsy Marks, wife of John Marks, the appellant, who had been his guardian, and for whom he expressed great regard, his negro woman Sukey, worth about forty-five pounds; and to his “poor old” aunt Polly Titmarsh, a sum of money out of his estate, to buy hera*horse, (for which he said he supposed eighteen or twenty pounds would be sufficient,) together “with an old field lying near her house, called Hackney’s and a line to be run so as to include sixty acres of land;” (which last-mentioned bequest, being of real property, and nuncupative only, could not have its intended effect;) that the testator had other personal property, viz. a negro man worth about four hundred dollars, a boy worth about two hundred, and two horses, which, together with his land, fell to Bryant’s wife, as his nearest relation and heiress; that he owned a hundred acres of land; and had owned a part of another tract which Bryant had bought of him, and for which a part of the purchase-money was unpaid; that he owed some debts, the amount not ascertained; that Bryant was in good circumstances, and Marks rather embarrassed ; that the testator, at the time of speaking the testamentary words aforesaid, also said that he gave to Mrs. Simmons (the witness) a desk, then in the room, which he pointed to and said was his, though in fact it was the property of Bryant; that the bequest of the desk was not committed to writing, because (as she stated on oath) she determined not to claim it, and had always said she would not; that Edward Marks drew and signed the writing; (in the form of the certificate of what the testator had said;) that John Marks, the appellant, afterwards carried it to Mrs. Simmons, and read it over to her several times before she signed it; which she did on the 26th of October, 1803; the words having been spoken on the 21st.
    ^Tuesday, May 2d. The examination of witnesses having been finished, Mr. Hay said he was willing to waive his objection to the non-production of the original will» his clients being anxious to have the controversy settled without further delay.
    JUDGE ROANE observed that, on reflection, he was of opinion that the original will ought to be produced, and that it was not in the power of either party to waive it.
    *JUDGE EEEMING concurred, and thereupon a subpoena duces tecum was awarded to the Clerk of the District Court, and another to the clerk of the County Court, both returnable the 13th of May.
    Mr. Hay then submitted 'the following propositions to the Court.
    1. The pretended testamentary words were not a good nuncupative will under our act .of Assembly ; because the last illness of the decedent did not commence at the place where he died; neither was he taken sick from home.
    2. The decedent was not sufficiently in his senses to make a will. His supposing a desk to be his which notoriously was the property of Mr. Bryant was a plain proof of the wandering of his fancy and defect of his intellects.
    3. If he was in his senses, the omission to insert the desk in the written memorandum or certificate of the will was fatal» because the whole of the testamentary words, or the substance thereof, should have been committed to writing within six days after making the will, 
    
    George K. Taylor. The last objection is answered by observing, that the will is good as far as it goes. As to the first, the conditions of the act of Assembly have been substantially, if not literally, complied with.
    JUDGE ROANE asked Mr. Taylor if he had inquired into a difference between the stat. 29 Car. XI. in England, and our act of Assembly; the word “surprised” being in the former, and not in the latter?
    
    Mr. Taylor observed, that the omission of that word in the act of Assembly, shewed the intention of the Eegislature to adopt a broader and more liberal rule than that established by the statute 29 Car. II. since they had the act before them when legislating on the subject. He submitted the question, upon the evidence, relative to the state of the decedent’s understanding at the time of his making the will.
    *Saturday, May 13. In obedience to the writ of subpoena duces tecum, the Clerk of Prince George attended with the original will, which, on inspection, was found to have been truly copied in the record. The bequests contained in it were, in substance, as above mentioned in our summary of the evidence, and no suspicious circumstance appeared on its face.
    
      
      Appeals. — See monographic note on “Appeal and Error" appended to Hill v- Salem, etc., Turnpike Co., 1 Rob. 303.
    
    
      
      Nuncupative Wiils — Where Made —Habitation.—On this question the principal case is cited in foot-note to Page v. Page. 3 Rob. 484; Reese v. Hawthorn. 10 ■Gratt. 553. See monographic note on "Wills."
    
    
      
       3 Hen. & Munf. 503.
    
    
      
      Cb) 1 Hen. & Munf. 476.
    
    
      
       Rev. Code, yol. 1, c. 93, s. 18, p. 163.
    
    
      
       Rev. Code, vol. 1, c. 92, s. 5, p. 361.
    
    
      
       Ibid. s. 6.
    
    
      
       See 2 Bl. 501.
    
   Thursday', May 18. The Judges pronounced their opinions.

JUDGE TUCKER.

Travis Womack, a young man, unmarried, on a Sunday in October, 1803, having been for some time in bad health, mounted his horse at City Point, where he resided as a boarder in the family of Mr. Garey, and rode twelve miles to the house of the appellee Bryant, whose wife was Womack’s sister, where he arrived so ill, that he took his bed, and died the following Sunday. During his illness he made a nuncupative will, whereby he left a negro woman, worth about 4S1. to the appellants, Marks and his wife, which is the subject of the present controversy.

The first question which seems to have presented itself, is whether any nuncupa-tive will made by the deceased under these circumstances would be valid. The doubt seems to arise from these words in the law. “No nuncupative will shall be established unless it be made in the time of the last sickness of the deceased, at his habitation, or where he hath resided for ten days next preceding, except where the deceased was taken sick from home, and dies before he returns to such habitation.” L. V. ed. 1794, c. 92, sec. 5. Now, as the deceased was not ten days at the place where he died, before that event happened, and is proved to have been very sick before and even when he left his usual habitation, it seems to be questioned whether he could be said to be taken sick from home.

I conceive it would be adhering too closely to the letter of the law, if we were to pronounce that no nuncupative 'x'will made under such circumstances ought to be established. The object of the law was to prevent frauds and impositions upon sick persons, by enticing them from their friends and relations, to the residence of strangers, where advantage might be taken of their weakness and infirmity; or where such pretended wills might be fabricated without the desire, or even knowledge, of the deceased, or any of his friends. The decedent in the present case, set out on a visit to his sister, and her husband: he thought himself able to ride so far; in this he proved not to have been literally mistaken, though probably the journey hastened his death. He was a mere sojourner at City Point. He had no mansion-house there, nor was he in the family of his father, mother, or other near relation, there. He went to the house of his nearest, or one of his nearest relations, the very persons who now contests this will. Although he was not first taken sick there, he was taken so much worse than he had been before, as never to leave the house again; it appears to me, therefore, that the case is so far fully within the true intent and meaning of the law.

With respect to the sanity of the testator, and the proof that he meant to give these little tokens of his gratitude and affection to his relations, one of whom had been his guardian, I feel not the least doubt either of his capacity, or intention to make such a disposition, and therefore am of opinion, that the judgment of the District Court be reversed, and that of the county Court affirmed.

JUDGE ROANE.

Upon the testimony in this cause, it is clear that the testator was fully competent to dispose of his estate at the time of making the will in question ; and that he made a serious and solemn disposition of the property comprised in the same, and desired the persons present to take notice thereof.

Two objections, however, are made in point of law; 1. That the substance of the will in relation to the whole ^property bequeathed by him at the time, was not reduced to writing within six days; and, 2d. That the testator was not taken sick from home, and consequently had no power to make a nuncupa-tive will under the provisions of our act.

As to the first objection, it does not apply to this case. In this case two months had not elapsed between the date of the bequest and the offering the will for probate in Prince George Court. The act only provides that after six months have elapsed from the time of speaking the pretended testamentary words, no evidence shall be received to establish them, unless the testimony, or the substance of it, was reduced to writing within six days. The reason of this is obvious; but it does not apply in the case before us; and, therefore, as to the desk which is said to have been bequeathed at the time, but not mentioned in the memorandum, the bequest of it might, notwithstanding, have been established as a part of the will by oral testimony, at any time within six months. The bequest of the desk ought, upon the testimony, to have been added to, and made part of the nuncupative will, had it been proved by two witnesses other than a legatee: but, as it is, this bequest was rightly omitted as a part of the will, because it could not have been proved, otherwise than by the testimony of the legatee herself. I infer this under the reason at least of the 9th section of the act concerning wills.

As to the next point: under the statute of Car. II. in England, and our former act on this subject, no nuncupative will is good when it is made from the home of the party, unless the testator has been “surprised, or taken sick at the place where the will is made;” and Blackstone, commenting on the English statute, says, that “favour should not be shewn to nuncupative wills, unless the party has been surprised by sudden and violent illness.” This would seem to limit nuncupative wills made from the home of the parties to cases in which the party was convalescent when he left home, and was taken *ill for the first time after he had left it. In our act of 1785, however, this word “surprised,” is omitted; whence I infer, that a will may still be established as a nuncupative will, although the party was unwell when he left home; if afterwards he was taken more dangerously ill at the place at which the will was made, and of which illness he after-wards died. I cannot on any other ground account for the omission of the word “surprised,” in the act of 1785.

It is in proof in this case that the party was indeed very unwell when he left home; but his disorder was, perhaps, only the ague and fever, which, generally, is not mortal, and he was well enough at the time, to ride twelve miles on horseback. His illness probably increased soon after his arrival at the place of his destination, and very possibly assumed its character of danger from the fatigue of the journey only. There is no evidence shewing that he was taken with the illness of which he died prior to his leaving home, though he was then unwell; and, on this ground, I hold this will to be authorized, under the true construction of the act of Assembly.

With respect to his bequeathing a desk which it is said belonged to another, it is at most only a circumstance whence to infer a state of mind unfavourable to the making of a testament: it is a circumstance which often happens with many testators who bequeath property not their own; and, in this case, that equivocal circumstance is outweighed by positive testimony, shewing a competency in the testator to make a will at the time in question.

I am therefore for reversing the judgment.

JUDGE DEEMING,

verbally expressed his concurrence with the rest of the Court, saying the case was so clear that it was a good will under the act of Assembly, it was unnecessary for him to add any observations upon it.

Judgment of the District Court reversed, and that of the County Court affirmed unanimously. 
      
       Rev. Code, vol. 1, p. 161.
     
      
       V. L. edit, of 1769, p. 161.
     
      
       Vol. 2, p. 601.
     
      
       Rev. Code, vol. 1, p. 161.
     