
    *Mason v. Dunman.
    Monday, November 26, 1810.
    i. Nuncupative Will — What Constitutes — Case at Bar. — A man on bis death bed, at bis own bouse, and in his proper senses, sent for a neighbour to make bis will, who took notes thereof in bis presence, and in that of another witness who was present all the time, and 'beard the sick man request the first witness to make bis will, and direct each note to be taken. A third witness was not present when the first began to take notes, but was present afterwards, and heard some of the notes dictated. Two of the witnesses swore that the notes, or most of them, were read to the decedent, but, were not positive that the whole were; nor did the sick man read them himself; but he was then in his proper senses. After the first witness had made a draught of a will from the notes, the decedent was incapable of reading, or hearing it read; being at that time delirious. The notes taken as aforesaid were established as a good nuncupative will.
    At a Court held for Lunenburg County, the 12th of July, 1804, a paper was offered for probate as containing the nuncupative will of John Dunman, deceased.
    The evidence offered in support of the probate was that of a certain John Blackwell, “who swore that he was sent for by the decedent for the purpose of making his will; that the decedent asked him whether he would write the will there, or take notes or hints upon paper or slate, or words to that effect, and go into another room to write it; that the witness took notes, in the presence of the decedent, at his dwelling, and in his last illness,” (which are set forth in hsec verba, in a bill of exceptions,) “from which notes he drew a will in another room;” (also set forth in like manner, and bearing date on the 6th of March, 1804;) that he read over, as he drew the notes, some of them to the decedent, but is not positive-that he read all of them; that, after he had taken all the aforesaid notes, he did not read them over to the decedent; neither did the decedent read them to himself; but the witness believed the decedent was of sound mind at the time of taking the notes; but that, after he had drawn the will from the notes, the decedent was incapable of reading it, or hearing it read, being at that time delirious. ” Sterling Davis, another witness, swore that “he was not present when said Blackwell began to take said notes, but was present before they were finished, and heard the decedent direct some of them to be taken; but does not recollect their purport.” This witness “thought the decedent was of sound mind.” William Barnett, a third witness, (having previously, in Court, relinquished and released all benefit which he might be entitled to under the will of John Dunman, deceased, in case the same should be established,) swore, “that he was present at the time the notes were taken, and held the candle for the said Blackwell to take them by, and heard the decedent request said Blackwell to make the said will, and direct each note to be taken;” at which time the decedent “was of sound mind.” The witness was certain that the greater part of the notes, as they were taken, were read to 457 the decedent; and "'believed, but was not certain, that he heard the whole of them read. He believed that the notes “above annexed” were the notes then taken by the said Blackwell; and averred that he (the witness) was no way related or connected with the decedent, who, when in health frequently before his illness, expressed his determination to leave half his estate to the children of the said witness. John Williams, a fourth witness, swore that the testator frequently before his death, when in good health, declared that he intended to make the children of his brother Joseph Dunman, and of William Barnett, his heirs. Upon this evidence, the County Court admitted “the said paper” to record as the nuncupative will of John Dunman; and that order was affirmed by the District Court; whereupon Peter Mason (who, with Sally his wife, and others, children of James Dunman, deceased, had been originally summoned to shew cause, if any they could, against the probate) appealed to this Court.
    According to former decisions, the Clerk of the District Court was summoned and attended with the original notes and draught of the will made by John Blackwell ; from which, as well as the copies inserted in the transcript of the record, a difference appeared between the notes and the draught, in this, that .the former contained a clause whereby the testator bequeathed to his mother a yoke of steers during her natural life, and, at her decease, to be sold to pay her debts, and the residue of his own debts, if any; which clause was omitted in the latter.
    Wirt, for the appellant; In the present case the paper exhibited for probate was offered as a nuncupative will, and received by the Court as such; but it is evident the testator’s intention was to have a written will. The notes were taken only as hints to lead to a will, but not as the will itself. Can a man make a nuncupative will without intending it? If the Court should so decide, they would convert into a will what was never intended to be one, and, in^effect, make a will for the decedent.
    But, if this was intended as a nuncupative will, the requisitions of the act of Assembly were not complied with: for it is not proved that the testator called on any person present to take notice, or bear testimony, that such was his will, or that he used any words of the like import.
    *Munford, for the appellee.
    The requisitions of the act of Assembly are substantially complied with in this nuncupative will. The witness who took notes of the will does not say, totidem verbis, that the testator told him, or others, to take notice that such was his will; but that he sent for him for the purpose of making his will; that, when he came, he asked him whether he would write his will there, or fake notes or hints upon paper or slate, and go into another room to write it; that the witness, thereupon, in the presence of the decedent, took notes which he dictated, and which are evidently very particular and accurate, and clearlj’ intended as a will. These circumstances must be equivalent to the “words of like import” required by the act of Assembly.
    It is said, that these notes were intended to be reduced into form; and that the testator did not declare them his will, but only that he intended them to be his will, when reduced into form, and approved by him. But a will is only “the legal declaration of a man’s intentions which he wills to be performed after his death.” A declaration, therefore, that certain words are his will, and, that he intends them to be his will when committed to writing and reduced into form, must be good as a nuncupative will, which is sufficient, (if legal in other respects,) though verbally made, and not in form. Indeed, the words themselves, though not committed to writing at all, would have been sufficient if recollected by the witnesses within six months; and, after six months, if committed to writing within six days,  The words themselves were, in truth, the nuncupative will. The writings in question are only evidences to prove (or, rather, to corroborate the parol testimony) that such words were spoken.
    No doubt, in all cases of nuncupative wills, the testator intends to have his will reduced to writing, and signed, if he shall live long enough to accomplish it: and it is the very disappointment of this intention, that makes it bad as a written will, but (in case the other requisitions of the law be complied with) good as a nuncupative will. I grant the testator’s intention, as to the disposal of his property, must remain unchanged ; that is, no declaration of a change of intention must appear. But in this case there was no evidence of any change of intention. In Cogbill v. Cogbill, 2 H. & M. 467, the great principle upon which the memorandum was established as a good codicil was that no change of intention appeared.  In this case, John Bun-man’s declaration of his intention, 459 ^concerning the disposa] of his property, was not incomplete, or conditional, but positive. There was indeed an implied condition annexed to the directions given Blackwell relative to the formal draught of the will, that it should conform in substance to the notes dictated by himself. If that condition was broken, that paper might have been objected to, and not signed by him, had it been presented to him. But the validity of that paper is not indispensably now in question. The notes taken in his presence, to which notes no condition or reservation was annexed, expressed the nuncupative will, and ought to be established as such, even if the other paper should be rejected.
    Wirt, in reply.
    The draught in the form of a will is the paper tendered, for probate, as the nuncupative will; and it cannot be received as such, because it does not agree with the notes. The intention of the Legislature in using the expression, “words of the like import,” was to dispense with any particular form of words, but not to dispense with a public declaration that the words were spoken with an intent to bequeath. But here the testator only gave hints to write a will, and uttered, in reality, no testamentary words. A flood of frauds, corruptions, and ingenious contrivances may be let in, if a will be established under such circumstances as these.
    Wednesday, November 28.
    
      
      Nuncupative Will — What Constitutes. — A testamentary paper signed and acknowledged in the presence of- witnesses, who are requested to attest it, and attested by them out of the presence of the testatrix, so that it is not good as a written will, cannot be set up as a nuncupative will. Reese v. Hawthorn, 10 Gratt. 648, 550, citing and distinguishing the principal case and Phoebe v. Boggess, 1 Gratt. 129.
      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.
      Rochelle v. Rochelle, 10 Leigh 140, cites the principal case as rejecting notes for a will though dictated by the dying man, because it did not appear that they had been read over and approved by him.
      See generally, monographic note on “Wills.”
    
    
      
       1 Rev. Code, p. 161, c. 92, s. 5.
    
    
      
       2 Bl. Com.499.
    
    
      
       1 Rev. Code, p. 161, c. 92, s. 6.
    
    
      
       See Judge Roaxe’S and Fleming’s opinions throughout; particularly p. 511, 513, 514, 522, 524.
    
   The Judges pronounced their opinions.

JUDGE TUCKER,

after stating the case. The witnesses not being positive that all the notes taken by the Srst witness, in the presence of the testator, and by his direction, were read over to him, and approved by him, after they were committed to writing, I am of opinion that the Court did right in considering those notes as too imperfect to be established as a written will; and the draught, when completed, not being read to him, nor approved by him, must be considered liable to the same objection. But, although those notes were not, for the reasons just mentioned, to be considered as a written will, I think the court judged very properly in admitting them to record, as containing the substance of a nuncupative will, made by the decedent, in ex-tremis, at his own house, and in his proper senses.

*JUDGE ROANE.

I am clearly of the same opinion. The notes taken by the bed-side of the dying man were a good nuncupative will; but, as it does not appear clearly whether the Court below meant to establish the notes, or the draught of a will, I think it would be proper to express it to be the intention of this Court to establish the notes; especially as there is a slight difference between them and the draught.

JUDGE FLEMING.

This is a plain case, that the notes are a good nuncupative will, better authenticated than any I have seen. But the notes ought to be established, instead of the draught; there being a slight difference between the two papers, merely as to the disposal of the money arising from the sale of certain oxen.

Judgment unanimously affirmed; and the Clerk (to prevent misconceptions) directed to enter the notes verbatim in the order-book. 
      
      See 2 Bl. Com. 502.
     