
    IN RE ESTATE OF BUSHROD W. ASKINS.
    Nuncupative Wills; What are; How Proven.
    1. The law of nuncupative wills is regulated in this District by the 19th and 20th sections of the statute of 29th Chas. II., ch. 3.
    2. Consequently no testimony can be received six months after the nuncupation to establish the will unless such testimony have been reduced to writing within six days after the making of the will.
    3. In order to establish such a will it must appear by proof that at the time of pronouncing the alleged testamentary words the testator did bid the persons present, or some of them, to bear witness that such was his will, and it must also appear by proof that such nuncupative will was made in the time of the last sickness of the deceased.
    No. 3,929.
    Orphans' Court.
    Decided March 9, 1891.
    The Chief Justice and Justices James, Montgomery and Bradley sitting.
    Appeal from a decree of the Probate Court sustaining a caveat to an alleged nuncupative will and refusing probate thereof.
    
      Decree affirmed.
    
    The facts are stated in the opinion.
    
      Messrs. Franklin H. Mackey and Randall Hagner for ■ caveators:
    The caveators contend that this is in no sense a nuncupative will.
    Nuncupative wills are not favored by the law, and the factum of such will must be strictly proven, and must conform in every way to the legal requirements of such a will. As was said in Yarnall’s Case,- 4 Rawle, 45, “It must plainly appear that the instrument proposed to be proved contains at least the true substance and the import of the declaration made by the deceased.”
    Nuncupative wills, if in force in- this District, are made so by virtue of the Statute 29th Charles II., ch. 3, secs. 19-21, Thompson’s Digest, 352.
    The 20th section of that statute provides—
    “That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will.” ■
    The alleged nuncupation in this case states that Askins died April 18, 1890. It was filed in the Orphans’ Court April 22, 1890, or four days after the death of the deceased. It was not offered to the court for probate until the 24th day of October, 1890, that is to say, six months and six days “ after the speaking of the pretended testamentary words.” In the meantime there was nothing “ committed to writing” except what is contained in this paper.
    It is plain, therefore, that no oral testimony could supply what was lacking in the paper itself. Newman vs. Colbert, 13 Ga., 38.
    This paper, then, even if it be established by the testimony of the witnesses, would not show a nuncupative will. In the first place it has neither the rogatio testium nor any other evidence of animus testandi.
    
    “ It is indispensable to the validity of a nuncupative will that the testator should request those present to bear witness 
      (rogatio testium) that such was his -last will, or that he should say or do something equivalent to such an expression.” Arnett vs. Arnett, 27 Ill., 247; Morgan vs. Stevens, 78 Ill.; Sampson vs. Browning, 22 Ga., 293; Babineau vs. Le Blanc, 14 La. Ann., 719; Garner vs. Lansford, 20 Miss. (12 Smed. and M.), 558; Parkinson vs. Parkinson, id., 672; Brown vs.. Brown, 2 Murph. (N. C.), 350; Winn vs. Bob, 3 Leigh (Va.), 140; 1st Jarm. Wills, 238 (5 Am. Ed.)
    ■ -The paper in question says that “several times before his. death he spoke about making a will, and. stated how he wanted it writtenl' Then the paper goes on to state what he said, viz., at these several times.
    Certainly this paper contains none of the requisites of a. nuncupative will. It does not state that the testator was even sick at the time of uttering the alleged words, and unless he-were in extremis it would be of no effect. It does not show that he called these witnesses around him and requested them to' testify that this was his will. On the contrary, the paper-on its face negatives any idea on the part of the deceased that: he intended to make a nuncupative will. No doubt (if what is said in the paper be true) he wanted to have a will written,. but that is not a nuncupative will. “Several times before his death he spoke about making a will, and stated how he wanted, it written.” Thousands of men have not only several times, but many times before their death, spoken about making a will, and stated how they wanted it writteii, and yet have failed for some reason or other to have it written, and as a consequence died intestate — but it was never until now contended that such action on their part constituted a nuncupative will.. To execute a nuncupative will a man must be in his last sickness. He must call the witnesses about him and request, them to witness (rogatio testium) that he is about to make his will, and all this must appear, at least in' substance, in the-paper offered for probate. Nothing of the sort appears here, and the court properly refused probate.of the paper offered-
    
      Mr. R. P. Jackson for caveatee cited:
    Brayfield vs. Brayfield, 3 Harris & Johnson, 280; Dorsey, vs. Sheppard, 199; 12 Gill & Johnson, 169; Dockum vs. Robertson, 6 Foster, page 372, New Hampshire, vol. I; Redfield on Wills, 192; Hubbard vs. Hubbard, 4 Seldon, 196; Baker vs. Dodson, 4 Humphreys, 342; Parson vs. Parson, 2 Greenleaf, 298.
   Mr. Justice James

delivered the opinion of the Court:

The question in this case is whether a certain alleged nuncupative will shall be admitted to probate. The heirs of the alleged testator filed in the Orphans’ Court a petition contesting its validity, and the proceeding appears to have been intended to be plenary; but this petition and the order of the court refusing to admit the will are the only facts disclosed by the printed record. We are compelled to make out the case partly by inference.

The subject of nuncupative wills is regulated by sections 19 and 20 of the statute of 29 Chas. II, ch. 3. Section 19-provides that: “ No nuncupative will shall be good, where the estate thereby bequeathed shall exceed the value of A30, that is not proven by the oaths of three witnesses (at the least) that were present at the making thereof; nor unless it be proved that testator, at the time of pronouncing the same, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect; nor unless such nuncupative will were made in the time of the-last sickness of the deceased, and in the house of his or their habitation or dwelling, or where he or she have been a resident for the space of ten days or more next before the making of such will.”

Section 20 provides: “That after six months after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making, of said will.”

The only testimony that appears by this record to have been produced at the hearing in the Orphans’ Court was the following paper:

“Bushrod W. Askins departed this life on the 18th day of April, 1890, aged 85 years, at the residence of Mrs. Louisa Shoemaker, in the County of Washington, District of Columbia; that several times before his death he spoke about making a will, and stated how he wanted it written. He said he devised all his property, which was personal, to those he knew best, viz: William Shoemaker, Harriet Shoemaker, Edith Shoemaker and Mary Balanger, to be equally divided between them, and William Shoemaker to be executor of his estate; he was at the time of speaking the above words of sound and disposing mind and memory, and every way capable of knowing what he was saying. He stated that he had distant relatives, but as they never came to see him, and appeared to care nothing about him, he would not leave them anything, except Mary Balanger. He was a bachelor, never having been married, and lived in the Shoemaker family for 58 years.

“ Witnesses: William Shoemaker, Harriet Shoemaker, Edith Shoemaker, Mary Balanger, 1024 Congress street; William Jackson; John G. Bohrer, Bethesda; George W. Balanger.”

This paper was filed on April 22, 1890, four days after the death of the alleged testator; the caveat was filed on the 18th of July, 1890; but the case was not heard on the testimony until the 24th of October, 1890, about five days after the lapse of six months after the death of Askins. At that hearing no testimony establishing the fact of a nuncupative will could be received, unless it had been reduced to writing within the time limited by the 20th section of the statute; and it does not appear by any affirmative statement of the record that the proponent of the alleged will either possessed or offered to produce any other testimony so written than the paper above recited. If that writing did not show that all of the conditions necessary to the validity of a nuncupative will had been complied with the proponent could not prove such compliance by testimony which had not been reduced to writing within the prescribed time. The only question, then, which could be considered by the Orphans’ Court was, whether the writing set forth in the record showed the necessary facts. The statute requires proof that at the time of-pronouncing the alleged testamentary words, the testator “ did bid the persons present, or some of them, to bear witness that such was his will,” and proof that such nuncupative will was made “in the time of the last sickness of the deceased;” and neither of these facts is. stated in the writing submitted to the court.

The court therefore had no proof of these necessary facts, and it must be assumed that there was no proof of them which it could at that time receive. The written testimony which it could receive, and did actually admit, was. defective as to another essential matter. The paper before us states that “ several times before his death, he (the deceased) spoke about making a will and stated how he wanted it written.” Instead of showing that he intended to be understood to announce a. will as then and there finally made, this .statement indicates-the contrary, and shows ari intention to make a will in writing-at some other time. In other words, it is shown by the proponent himself that the statements of the deceased did not-constitute the making of a will.

We observe that the judgment of the Orphans’ Court seems-to describe the paper in question as if it was offered as the-written will of the deceased. Although inartificial, this form, appears to have been commonly used in the Maryland practice under this statute. It sufficiently expresses the fact that: alleged announcements of the deceased did not constitute his will.

Decree affirmed.

Mr. Justice Montgomery

dissenting:

I am not able to fully agree to the conclusion which has been reached by my brethren in this case, and I will briefly state my reasons why.

The memoranda quoted by Mr. Justice James, .which was-filed by someone, and which purports to be a statement, or an abstract of a statement of what deceased is alleged-to have said in the presence of witnesses in regard to the disposition of his property, seems to have been treated throughout the proceedings as the alleged will itself, and when the matter came on for hearing in the Orphans’ Court, instead of proceeding to hear the evidence, the “ decree” indicates that the presiding justice simply considered whether or not that paper should be admitted to “ probate and record * * * as the nuncupative will of the said Bushrod W. Askins,” and very properly decided that it should not be so admitted.

Of course everybody understands that a nuncupative will is one which is “ made by word, or without writing.” “An oral will made by the testator in extremis.”

Manifestly it was not the intention of the statute which has been quoted by Mr. Justice James to require that the will itself should be reduced to writing, and yet for some (to me) wholly unaccountable reason, learned authors and commentators have declared that the statute did “ enact * * * that no nuncupative will shall be proved by the witnesses after six months from the making, unless it were put in writing, within six days.” 2 Black. Com., 501; 4 Kent. Com., 517; 2 Bouv:, L. D., 247.

These authorities are so eminent that I should not venture to intimate that they were in error were it a question of construction or of legal judgment, or indeed anything beyond what it is, — a simple accurate reading of the words of the act.

-If, then, the statute means, as we all agree that it does, that the will itself need not be written, and that in case the hearing occurs within six months after the speaking of the “ pretended testamentary words,” any witness may depose, even though nothing of his testimony, or of its substance, has been “committed to writing,” and if, as we also all agree, in case such hearing take place after the expiration of such six months; then any witness whose testimony or substance of which was within the six days “ committed to writing,” may testify to such facts so committed, whether such testimony or substance be in one or any number of different papers, and whether filed before such hearing or not, then I am sure it follows that whenever such hearing comes on the propounder should be allowed an opportunity to present his testimony, and all his ■competent material testimony, and if he fails to establish the fact that the deceased said or did that which amounts to the making of a nuncupative will, it should be so decreed.

The record and files which we have' before us in this case ■do not indicate that any testimony whatever was heard or offered, but as said above, that the paper itself was treated as the alleged will, and on its face, it clearly failing to exhibit such facts as would establish the making of a nuncupative will, the decree was made.

In my opinion the cause should go back to the Orphans’ ■Court, and the propounder of this alleged nuncupative will be afforded an opportunity to present his testimony, if he have ■any, and all of it which is under the statute competent, and whether its substance be or be not on file in the case. We ■are all agreed, however, that after the expiration of the six months, no witness can be heard unless his testimony or its .substance were committed to writing within the six days.  