
    G. L. Godfrey, Guardian ad Litem, et al. v. Lillie A. Smith.
    Filed May 3, 1905.
    No. 13,644.
    1. Review: Parties. The rule that a motion for a new trial is indivisible cannot be invoked to defeat a review of a meritorious petition in error filed by a minor defendant, whose guardian ad litem, has inadvertently joined her with a mere nominal defendant who has no rights involved in the controversy.
    2. Nuncupative Will. A formal request from the deceased to all or some of the three or more witnesses present to hear witness that the words spoken are his will is essential to the validity of a nuncupative will.
    3. nuncupative wills are not favored hy the courts, and must he proved in strict conformity with the statute authorizing them.
    4. Evidence. A nuncupative will cannot he established hy witnesses having an interest in the will as the only legatees.
    5. nuncupative Will. Where a verbal will is made in the last sickness, of which the testator dies, when such sickness has progressed to such a point that he expects death at any time, and realizes that he is liable to die therefrom at any time; and in view of such expected death, and as preparatory thereto, makes a will near to the time of his death, such will is made in the last sickness of the testator, although a sufficient time may have intervened between the making of the oral will and the death of the testator to have permitted the making of a written will.
    Error to the district court for Kearney county: Ed L. Adams, Judge.
    
      Reversed.
    
    
      G\ L. Godfrey and Joseph Pinhham, for plaintiff in error.
    
      T. L. Norval, Hague & Anderberry and J. L. McPheely, contra.
    
   Oldham, C.

Charles A. Smith, Avho for about 18 years prior to his death resided in, and at the time of his death was a resident of, Kearney county, Nebraska, departed this life March 4, 1903, in the city of Minden, leaving as his sole and only heirs his AvidoAV, Lillie A. Smith, and his daughter, Alta Smith, a minor of the age of seven years, and leaving an estate consisting of real estate of the value of $12,000, and personal property of the value of $1,000. Within six days after the death of Charles A. Smith, his widow, Lillie A. Smith, had reduced to writing a paper purporting to be the nuncupative will of Charles A. Smith. A petition was duly filed in the county court of Kearney county asking that this alleged Avill be admitted to probate. Objections to the probate of the Avill were filed by Deborah A. Pinkham, mother of deceased, and Alta Smith, infant daughter of .deceased, was made a party defendant and answered.by a guardian ad litem, admitting the death of Charles A. Smith, and that Lillie A. Smith was the wife," and defendant Alta Smith the daughter, and only heirs of deceased, and denying each and every other allegation contained in the petition. On issues thus joined there ivas a trial in the county court, a judgment for defendants, and probate of the Avill Avas denied,. The proponent appealed from the judgment of the county court to the district court, and on issues joined in the district court there was a trial had to a jury, Avhich resulted in a verdict for proponent. A judgment and decree Avas entered on this verdict, finding that the paper offered was the genuine and valid last will and testament of deceased, and directing that it be admitted to probate and established as a will of the real and personal estate of deceased. A joint motion for a new trial Avas filed in the court beloAV by the guardian ad litem of the minor defendant Alta Smith, and Deborah A. Pinkham, and likeAvise a joint petition in error has been filed by these defendants in this court.

It is urged by able counsel for the proponent that Deborah A. Pinkham, the mother of deceased, has no pecuniary intere,st whatever in the estate of her deceased son, and therefore could not legally institute or conduct proceedings to contest his will. This contention is Avell supported in authority, and, Ave think, cannot be successfully contravened. McDonald v. McDonald, 142 Ind. 55; Brewer v. Barrett, 58 Md. 587; Taff v. Hosmer, 14 Mich. 255; Jele v. Lemberger, 163 Ill. 338. This position is followed by invoking the rule, too Avell established in this court to require citations of authority, that a motion for a new trial is indivisible, and, when made jointly by two or more parties, if it cannot be allowed as to all, it must be overruled as to all. And the same rule is invoked with reference to the joint petition in error filed in this court.

The question, then, arises, can this rule be invoked for the purpose of denying a.minor defendant a hearing in this court on a meritorious petition in error, because her guardian ad l-itcm has inadvertently joined her in a motion for a new trial and petition in error Avith a mere nominal defendant who has no substantial rights involved in the controArersy? It is the general rule that a minor may not be estopped by anything that he says or does while he is under age, and it Avould certainly seem repugnant to the principles upon Avhich the laAV protects infants from civil liability or the spoliation of their estates to deny them a revieAV in this court under a mere technical rule intended to govern the actions of litigants of full age of legal accountability.) We are impressed with the reason of the rule announced in Boerum v. Schenck, 41 N. Y. 182, that, where the. revieAving court can clearly see that an error has occurred to the prejudice of an infant, the infant Avill not be alloAved to suffer thereby for any purely technical omission. To the same effect has been the holding in Branch v. Mitchell, 24 Ark. 431; Barnard v. Barnard, 119 Ill. 92.

The next question that confronts us is as to the sufficiency of the testimony contained in the bill of exceptions to prove the paper offered for probate A\ras the nuncupative Avill of Charles A. Smith, deceased. Certain facts connected Avith the death and attempted distribution of the property of Charles A. Smith are not controverted, and these may he said to be clearly proved. One fact is that about 10 days before his death he called on his attorney, Honorable J. L. McPheely, and gave a memorandum from Avhich he desired a written will to be drafted by his counsel; that for about a week before his death Charles A. Smith had been considerably indisposed and bedfast most of the time, and under the care of his family physician; that on the 3d day of March, at 8:30 o’clock A. M., the cónversation relied upon to establish the alleged nuncupative Avill took place at the bedside of deceased in the presence of his business partner, W. C. Taylor, and his wife and little daughter. This conversation can be best discussed by setting out somewhat in extenso the testimony on this question offered by each of these witnesses. W. C. Taylor, examined by Mr. McPheely:

Q. What time in the morning 'were you there? A. It was after eight o’clock, because I had opened up and then went. down. Q. Now, what part of the house Avere .you in that morning as compared with the room he occupied? A. Well, when I 'went in I just Avent to the door, and he was talking to Lillie and the little girl. Q. Did you go inside the room occupied by him? A. Yes, I did, but not right aAvay — not at first. He Avas talking to them. Q. Where was he Avhen you Avent into the room occupied by him? A. Lying there in the bed. Q. Who was in the room at the time? A. The little girl and Lillie his wife. Q. You mean Alta, the daughter? A. Yes, sir. Q. And Lillie A. Smith, his Avife? A. Yes, and I went in right aAvay. I just AAraited a moment. He AAras talking to them. Q. What was the wife doing at the time, aside from talking? A. She Ayas crying. Q. What part of the bed was she sitting on? A. On the foot. Q. Foot of the bed? A. Yes. Q. Where was Alta, the daughter, the little girl? A. She was right by the father. Q. What did you hear Charles A. Smith, the deceased, say at that time in regard to the condition of his health? A. Why, he said he wasn’t going to live any longer. Q. What did he say as to what disposition he wanted to make of his property? A. He said he wanted the, little girl to have $1,000 when .she was of age, and he wanted his wife to haATe‘ the rest; and then he said that he Avanted her to have the rest, because it cost so much to educate and raise the child that she ought to have it that way; and they talked on that Avay for quite a while. Q. Was there any reference, or anything said or made, to any writing made by myself, Mr. McPheely? A. He said before I went to leave — I told him I Avould have to hurry and get up and fix things for dinner — “Well,” he says, “now you remember it and have it as Mac has it wrote doAyn,” he says, “as Mac has it.” Q. What reference did he make to yourself during the conversation, as knoAving Avliat he wanted? A. Why, he says to me: “I want you to see it goes that way, as Mac has it.” Q. Who did you understand he meant by Mac? A. Who? Of course, we was talking about you in our conversation there. Q. About myself, McPheely? A. Yes, McPheely. He said he ivas up there, and he told me, and told her, too, for to have it fixed out, but he didn’t.

Alta Smith, examined by Mr. McPheely:

Q. Do you remember of a talk with your father the morning.before he died, in your house? A. Yes, sir. Q. Who was present at that time, Alta, I mean who was there? A. Mamma and me and Will. Q. Who do you mean by Will? A. Will Taylor. Q. Will Taylor, the gentleman who was just on the witness stand? A. Yes, sir. Q. Where was your father, in bed or sitting up, at that time? A. In bed. Q. Who was he talking to? A. Mamma and me. Q. And was Will Taylor present at the time — was he in the room? A. He just come in. Q. What was your mamma, doing at the time, aside from talking? A. She was crying. Q.. What did your father say about whether he would live or not? A. I don’t know about that. Q. What did he say about what he wanted done with his property? A. He said for me to get $1,000 and mamma to get all the rest. Q. Said something to Mr.. Taylor, or do you remember about that? A. I don’t remember that. Q. Do you remember anything he said except— A. Only— Q. What lie wanted you to have? A. He said, for me to get $1,000. Q. And your mamma the balance, all the. rest? A. Yes.

Lillie A. Smith, examined by Mr. McPheely:

Q. What business Avas your husband engaged in at the time of his death? A. Restaurant. Q. Are you acquainted Avith William Taylor, the Avitness who just testified? A. Yes, he had a home with us from the time he was nine years old, Avith the exception of about two years and a half he Avas in Wisconsin. Q. Were you present at the time of your husband’s death? A. Yes, I Avas. Q. How long had he been confined, before his death, to his hed? A. Well, he had been in his bed, up and down, for a week, of course, not all the time. I would get him up in the rocking chair to ease him and change him around, but he hadn’t been arising from his bed at all. The day before, on Monday, the second, I got him up in his rocking chair a few minutes, a little while, that was the last time he was out of .his bed. Q. That was on Monday? A. Yes, sir. Q. What day of the week did his death occur? A. On Wednesday morning, about three o’clock. Q. Was any statement made by your husband, say on Tuesday morning, in relation to his condition and his property? A. Yes, sir. Q. Who was present at that time? A. My little daughter Alta, and William O. Taylor. Q. That is the witness Taylor who was on the witness stand? A. Yes, sir. Q. What time of day was that on Tuesday morning? A. Just before the little girl went to school; possibly about half past eight or near that. Q. What did your husband say in the presence of yourself, your daughter Alta and William Taylor, in regard to his physical condition? A. Well, he said he was worse than we thought he was. He thought he was failing so, and he was worse off than I thought, or anyone thought, or the doctor. Q. What did he say in regard to whether or not he thought he would live? A. He said he didn’t think he would get well. Of course, I didn’t think but what he was just talking. I didn’t know how bad he was. Q. What did he say in regard to the disposition that he desired to have made of his property in case of his death? A. He said he wanted the little daughter to have $1,000 when she was of age, and he wanted that I should have the balance as my own. Q. What did he say at that time, if anything, in reference to a memorandum I had made for him? A. Well, he said then that Mac knew how he wanted.it, after he had told me, and he said — he looked up and saw Will Taylor in the'room — and he says, “You see, Will, that it goes as I want it,” and he said, “Mac has it as I want it.” Q. What did he say about writing it down by myself? ■ A. He said you had it written down as he wanted it. * * * Q. What answer did Mr. Taylor make to him when your husband appealed to him, or stated that? A. He walked along up the bed, and said: “You will get well, Charley, and then you can see to your business yourself.” Q. What did Charley say? A. He said: “I don’t think I shall: I am very sick. I am worse than you think I am.” Q. What did Mr. Taylor say as to seeing that it' would be carried out, what Charley requested? A. He said he would do the best he could, he would.

Cross-examination. Q. Referring to the morning of the third, when the statements were made by Mr. Smith to which you have sworn, had he taken.suddenly ill, or was he worse then than he had been, to all appearance, for the week hack? A. Well, I didn’t think very suddenly. It just gradually came on he was getting worse all the time. Q. Why was the little girl in there? A, Because it was her custom to come in and see her papa before she went to school. Q. Had she been going to school, Mrs. Smith, all the time up to this morning? A. Why, I think she hadn’t missed any days that I know of. Q. Did she go to school the'morning of the third after that? A. Yes, she went to school. Q. Who had been the attending physician? A. Dr. Martin. Q. When had you first sent for Dr. Martin? A. I got medicine from Dr. Martin — he didn’t consider only his nerves, I supposed. I spoke to my husband that morning, and said: “I guess I had better call the doctor.” And he said: “I have medicine to last today; I don’t know whether you had better or not.” Then he said afterwards: “I guess I had better wait,” he said, “if it is my nerves I don’t think it is necessary,” hut he said, “I am worse than you think, or the doctor.” Q. How long prior to that time was his last visit to your husband? A. I don’t remember the date. Q. Had it been four or five days? A. I guess it was that long. I cannot remember the date of it. Q. When did you next call Dr. Martin? A. On the third, in the evening. Q. What time about? A. I think about six, somewhere along there. I don’t know the exact time, as I remember. Q. Had he said anything about the disposition he desired to make of his property before Mr. Taylor came in? A. No, sir. Q. Nothing at all? A. No, sir. Q. What was the first word he said as to the disposition of his property? A. Well, I think the first he said was that he had it mapped out, or Mac had it written as he wanted it I cannot recall just the exact words, anyhow it was to the same effect, he had it just as he wanted it. He wanted I should have the handling of it, and Alta should have $1,000. Q. Did he at that time state to you that he wanted Alta to have $1,000. A. Yes, sir. Q. And that you should have the balance? A. Yes, he did. Q. Did he say anything about who should be appointed executor or executrix? A. Well, I don’t know. He said Mac liad it as he wanted it. I don’t recollect that he spoke of it. Q. That is, Mac had the memorandum of the way he wanted it? A. Yes, sir. (). He didn’t intimate to you that Mac had made a will for him? A. It would seem that way. There was something of that nature. I don’t know. Q. Did you at that time understand that Mr. McPheely had drawn a will for him? A. I didn’t know anything about it until he commenced. Q. At that time you had no idea, in this conversation you had with him, it was a will, did you? A. Why, no; I didn’t. Q. You never heard of the term nuncupative will before? A. No, sir. Q. Who was the first one suggested that to you? A. I suppose my attorney told me. Q. Mr. McPheely, after you had told him of this conversation? A. Yes, and he wanted Will to see that it went the way he wanted it. Q. You are sure that he said at that time without reference to anything that Mr. McPheely might haAre said, that he wanted Alta to have $1,000 and you the balance? A. Yes, sir.

Section 128, chapter 23, Compiled Statutes, 1903 (Ann. St. 4993), provides as follows:

“No nuncupative will shall be good when the estate thereby bequeathed shall exceed the value of one hundred and fifty dollars, that is not proved by the oath of three witnesses, at least, that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, to hear witness that snch was his will, or to that effect; nor unless such nuncupative will was made at the time of the last sickness of the deceased, and in the place of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the making of such will, except when such person was unexpectedly taken sick, being from home, and died before he or she returned to the place of his or her habitation.”

It will be noted that this provision of the statute requires that the will be proved by the oath of at least three Avitnesses who Avere present at the making thereof, and that it be proved that the testator, at the time, did bid tin; persons present, or some of them, to bear witness that such Avas his will, or to that effect. Under this provision of the statute it must be proved that the deceased, while uttering the words offered as a will, had not only a present testamentary intention, but also an intention to make an oral will, and that he intended that the words then uttered and no others should constitute his will. If he only gives instruction for a Avill that he desires to have reduced to writing, but fails to execute, the instructions cannot be sustained as a nuncupative avüL 1 Underhill, Wills, sec. 174; In re Will of Hebden, 20 N. J. Eq.. 473; Male’s Case, 49 N. J. Eq. 266; Porter’s Appeal, 10 Pa. St. 254; Reese v. Hawthorn, 10 Gratt. (Va.) 548; Ellington v. Dillard, 42 Ga. 361. Now which one of the witnesses to this will, from the evidence above set out, was called upon to bear witness in the presence of the others that the Avords then spoken were intended to be the last Avill and testament of Charles A. Smith? It certainly Avas not the minor defendant Alta Smith, for practically all she remembered of the conversation was that her father intended to give her fl,000, and Let her mother have the balance. She did not remember, nor assume to remember, that he called on either Mr. Taylor or her mother to witness that any particular words Avere his last will, or anything to that effect. If the will offered for probate is sustained, and if it were held that real estate may be devised by nuncupative will under our statute, the effect of this disposition of the estate of the decedent would be to practically disinherit this minor defendant, so that probably she could not be properly held an incompetent Avitness because of interest in the proposed Avill. But in vieAV of the very tender age of this Avitness she would be presumptiArely incompetent to testify as either a subscribing witness or an attesting Avitness to a will in the absence of proof sliOAAdng sufficient understanding to comprehend .something of the nature and contents-of the instrument Avhieh she Avas called upon to attest, and no proof of this kind is in the record. Proof of the rogatio testium or formal calling of witnesses to bear Avitness is a necessary element in this class of wills, and no matter how clear the testamentary intent may be proved, a paper offered as such will be invalid as a nuncupative will without satisfactory proof of this requisite. Page, Wills, sec. 237; Bundrick v. Haygood, 106 N. Car. 468; Tn re Gross-man’s Estate, 175 Ill. 425; Wiley’s Estate, 187 Pa. St. 82; Page’s Will, 23 Wis. 69; Porter’s Appeal, 10 Pa. St. 254. While it is true that in the proof of the rogatio testium no particular form of Avords is required, and it is sufficient under the provisions of our statute if the testator, by word, sign, or token, indicate to one of the witnesses to bear testimony that the words then spoken are intended as the last Avill of the testator, yet such AArord, sign or token must have been intended by the testator as a request and must have been understood as such by the witnesses present. Weir v. Chidester, 63 Ill. 453; Owens’ Appeal, 37 Wis. 68; Bradford v. Clower, 60 Ill. App. 55. Now, if we construe the words as spoken to witness Taylor by decedent, “I want you to see that it goes that Avay,” as a sufficient request to bear Avitness to his will, proof of this request is only supported by the testimony of Avitness Taylor, who is disinterested, and the wife of decedent, who is the beneficiary under the will. While it is only necessary to call on one witness to bear witness, yet it must be done in the presence of the other witnesses, and such fact must be proved by their testimony.

The general rule is that a nuncupative will cannot be established by one having an interest as legatee in the will. Beach, Wills, sec. 10; Gill’s Will, 2 Dana (Ky.), *447; Haus v. Palmer, 21 Pa. St. 296; Jones v. Norton, 10 Tex. 120. Nuncupative wills, except those of soldiers and sailors in the active military or naval service of the government, liara never been looked upon with favor by the courts, and proof of such wills is required in strict conformity with the statute authorizing them. Morgan v. Stevens, 78 Ill. 287; Yarnall’s Will, 4 Rawle (Pa.), 46; Biddlell v. Bidell, 36 Md. 030; Taylor’s Appeal, 47 Pa. St. 31; Lem amt v. Bonsall, 1 Add. Eccl. (Eng.) 387. Section 130, chapter 23, Compiled Statutes, 1903 (Ann. St. 4995), provides as follows:

“All beneficial devises, legacies and gifts whatsoever, made or given in any will, to a subscribing Avitness thereto, shall be wholly void, unless there be two other competent subscribing Avitnesses to the same; but a new charge on the land of the devisor for the payment of debts shall not prevent his creditors from being competent Avitnesses to his will.”

This section of the statute plainly declares the policy of preventing the proof of wills from being established by interested Avitnesses. While it is true that the Avords, “subscribing Avitnesses,” Aised in this section, technically construed, Avould only apply to a Avitness to a written Avill, and not to the attesting Avitness of an oral testament, yet, if this narroav construction be given the section above quoted, it destroys the effect of the use of the Avords, “all beneficial devises, legacies and gifts whatsoever, made or giAren in any Avill,” for there can only be, technically, a subscribing Avitness to a Avritten will; but, if a construction be given this section in conformity AArith the manifest intention of the hiAvmakers, AAre will treat “subscribing Avitness” as having been used as synonymous with “attesting Avitness,” or a witness by whose testimony a will must be established. We are cited by counsel for proponent to a well-Avritten opinion from the supreme court of Georgia in the case of Smith v. Crotty, 112 Ga. 905, 38 S. E. 110, in which it was held that under the statutes of that state the words, “subscribing witness,” could only be held to apply to a witness to a written will. The statute construed in the case just cited is as follows: “If a subscribing witness is also a legatee or a devisee under the will, the witness is competent, but the legacy or devise is void.” It will be noted that this statute does not apply to legacies and devises under any will, and it specifically makes the witness competent to testify, but renders the legacy void. Now, in the case at bar, it would be purely paradoxical to hold that two of the attesting witnesses, who are the legatees under the will and sole heirs at law of the deceased, might be permitted to testify, but could take no legacy under the will, for the effect of such a holding as this would be to leave the decedent intestate, and to admit to probate an alleged will that would neither bequeath nor devise any property to anyone. We are therefore compelled to conclude that neither of the legatees named in this will are competent witnesses to establish the will.

There is another question urged for consideration, and that is as to whether the proof is sufficient to establish the fact that the will offered for probate was made at the time of the last sickness of the deceased. The expression, “last sickness,” or “last illness,” occurs in nearly all American statutes providing for nuncupative wills, and is borrowed from the English statute, 29 Charles the Second, of which our own statute is a practical reenactment. The leading American case which construes the term, “last sickness,” in statutes of wills was written by the learned Chancellor Kent in Prince v. Hazleton, 20 Johns. (N. Y.) 501, and it Avas there held, by a divided court, however, that the term, “last sickness,” ivas equivalent to meaning “in extremis,” or an illness or sickness so violent that the testator had not .time, nor opportunity, nor means at hand, after making his oral will, to make a written will in legal form. This decision is generally commended by the text-writers, and has been followed in Bellamy v. Peeler, 96 Ga. 467; Donald v. Unger, 75 Miss. 294; Reese v. Hawthorn, 10 Gratt. (Va.) 548; Carroll v. Bonham, 42 N. J. Eq. 625; In re Rutt’s Estate, 200 Pa. St. 549, 50 Atl. 171; O’Neill v. Smith, 33 Md. 567. A more liberal view, however, of the meaning of this phrase has found favor in recent decisions of the supreme courts of Alabama, Tennessee, Illinois and Kansas. Johnston v. Glasscock, 2 Ala. 218; Nolan v. Gardner, 7 Heisk. (Tenn.) 215; Harrington v. Stees, 82 Ill. 50; Baird v. Baird, 70 Kan. 564, 79 Pac. 163. Under the decisions last cited, it is held that, where a verbal will is made in the last sickness of which the testator dies, when such sickness has progressed to such a point that he expects death at any time, and realizes that he is liable to die therefrom at any time, and in vieAV of such expected death and as preparatory thereto makes a Avill near to the time of his death, such will is made in the last sickness of the testator, although a sufficient time may have intervened between the making of the oral Avill and the death of the testator to have permitted the making of a Avritten will. We are inclined to think that this rule is all that a fair interpretation of the statute requires, and that a sufficient precaution to prevent imposition and fraud on the estates of decedents is taken by the courts when strict proof is required by disinterested Avitnesses that the words spoken were intended as the last will of the decedent, and that the witnesses present, or some of them, were called upon to bear Avitness of such fact. We think that the evidence was probably sufficient to sustain the verdict of the jury on the question that the will offered for probate was made in the last sickness of the deceased.

In view of the conclusion to be reached, it is not necessary to determine the question whether real estate is a subject of devise by nuncupative will under our statute. The only question involved in this controversy at the present time, and now before us for adjudication, is whether or not the Avill offered in the county court shall be admitted to probate as1 the last will and testament of tbe deceased; and, because of tbe interest of one of the attesting witnesses and the incompetency of the other, as before set out, there is not sufficient competent evidence to sustain the judgment, and we therefore recommend that the judgment of the district court be reversed and the cause remanded for further proceedings.

Ames and Letton, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.  