
    *Nowlin’s Adm’r & als. v. Scott.
    April Term, 1853,
    Richmond.
    (Absent MONOUBE, J.)
    Statute — Nuncupative Wills — “Habitation.”—The word "‘habitation,” in the act of 1 Rev. Code, ch. 104, § 7, p. 377, in relation to nuncupative wills, means ‘ ‘dwelling-house. ”
    
    At the December term 1847 of the County court of Campbell, the nuncupative will of Bryan W. Nowlin was propounded for pro-bat by Robert Scott, a legatee therein, and the probat was resisted by the administrator and by some of the next of kin. At the August term 1848 of the court, the will was admitted to probat; and there was an appeal to the Circuit court. At the December term 1850 of the Circuit court, the sentence of the County court was affirmed; and thereupon the administrator and next of kin applied to this court for an appeal, which was allowed.
    Several questions were made and discussed in the argument of the cause; but only one of these questions was considered by the court. It appears from the evidence that the testator resided on his plantation in the country. That at the time of his death he was building a mill in a tract of land owned by him adjoining that on which he lived. That the mill was about a mile and a half from his dwelling-house. That the day before he' died he was at the mill-house, and was there taken suddenly and violently ill; and then and there spoke the words as a nuncupative will which *were offered for probat. He was taken to his dwelling-house the same evening, and there died the next day.
    Stanard and Bouldin, for the appellants.
    Robinson, for the appellee.
    
      
      The act says, “No nuncupative will shall he established unless it is made in the time of the last sickness of the deceased, at his or her habitation, or where he or she hath resided for ten days next preceding, except where the deceased is taken sick from home, and dies before he or she returns to such habitation; nor where,” &c.
    
   SAMTJI3BS, J.

This case presents several questions under the statute regulating the execution of nuncupative wills. The facility with which fraud might be practiced by setting up pretended wills of this kind, was. discovered long since. To prevent such fraud the statute 29 Charles 2, chap. 3, § 19, was enacted. It is thereby provided, amongst other things, that the will must be made at the “house of [testator’s] habitation or dwelling;” or where he had been resident for the space of ten days or more next before making such will. This statute, with some variation, has been re-enacted in Virginia. 5 Hen. Stat. p. 456, § 9, 10, 11, 12; 12 Hen. Stat. p. 141, ch. 61, § 5. The statute on this subject, existing at the time the will propounded was made, is found, 1 Rev. Code, ch. 104, 7, p. 377. It is thereby required that the will be made at the habitation of testator, or where he hath resided for ten days next preceding, &c. The question is made, whether the will was executed at the habitation of Bryan W.’ Nowlin, within the ■ intent and meaning of the statute. In my opinion, the term habitation is to be understood as dwelling-house or home; that its meaning is the same as that of the stat. 29 Ch. 2, which used the terms “house of his or her habitation or dwelling.” Thus, I am of opinion that the will propounded was not- executed at a place at which Bryan W. Nowlin, under the circumstances of the case, could make such will. This construction is according to the letter of the statute, and is within its reason ; which is to place a testator, when making *such will, under the protection of his family and near relations, and thereby secure him against the frauds of strangers.

If I am right in this construction of the statute, it is unnecessary to decidé other questions presented by the record.

I am of opinion to reverse the sentence of the Circuit court with costs to the appellants; and rendering such sentence as the Circuit court should have rendered, to reverse the sentence of the County court, with the ¿osts of both courts to the appellants, and to refuse to admit the will propounded to probat.

The other judges concurred in the opinion of Samuels, J.

Judgment reversed.  