
    *Winn v. Bob and Others, Paupers.
    November, 1831.
    [23 Am. Dec. 258.]
    Nuncupative Wills — Essentials to Validity. -Jt Is essential to the validity of a nuncupative will, that it should, appear, that the deceased, at the time he spoke the alleged testamentary words, had a present intention to make his will, and spoke the words with such intention, and should distinctly indicate that intention by calling' upon persons present to take notice or hear testimony that such is his will, or by saying or doing' something tantamount in substance, indicating plainly th at the words spoken were designed to be testamentary.
    
      Wills — Right of Slaves to Have Will Proved — Quaere.— Whether slaves claiming' to he emancipated hy will, can properly he allowed to prosecute, in forma pauperis, a suit to have the will proved and recorded in a court of prohat, under the provisions of the statute, 1 Rev. Code, ch. 124, § 4, 5?
    Nuncupative Wills — Emancipation of Slaves — Quiere.— whether slaves can he emancipated hy nuncupa-tive will, under ihe provisions of the statute, Id. ch. Ill, § 63? And it seems they cannot; per Tucker, P., and Brooke, J.
    The appellees, Bob and ten others, who had been the slaves of John Andrew Schwartz late of Nottoway county deceased, in his lifetime, preferred their petition to the county court of Nottoway, setting forth, that they had been emancipated by their late owner, by will duly made to that purpose, but no executor was named in the will, and it had not been proved and recorded, nor had any one as yet taken administration of the decedent’s estate; and that they were still held in slavery by the testator’s next of kin and distributees, or some of them; and praying permission to sue in forma pauperis, to have the will proved and recorded, and thus to recover their freedom, according to the statute, 1 Rev. Code, ch. 124, $ 4, S, p.481. The county court gave them the permission, and assigned them counsel. And then their counsel offered for probat, a paper containing, as they alleged, the written or the nuncupative will of the decedent, in the following words;
    “In the name of God, Amen. I J. A. Schwartz of the county of Nottoway, being in my perfect senses, do make and declare this my last will and testament. 1. My will and desire is, that all my real estate shall be disposed of at public auction, and the proceeds of the same appropriated to the payment of my debts. 2. My will and desire is, that *my servants, Bob, Trank, Polly and her children, be. emancipated, .and entitled to all the privileges of free persons of colour forever, also Bob’s wife Betty and her children. 3. It is my will and desire, that one half of the remaining part of my estate be given to Juliana Malvina Winn”-
    A. B. Winn, husband of one of the dis-tributees of the deceased, appeared in court and contested the probat.
    The county court, upon a full hearing, was of opinion that the paper did not contain the will of the decedent, and refused to record it. The counsel for the paupers took an appeal for them to the circuit court.
    At the hearing in the circuit court, the evidence was stated at large and made part of the record. There were four witnesses, whose testimony was not materially variant, and was in substance, this: About three hours before the decedent’s death, which happened at his own house, one of the witnesses, Dr. Worsham, his attending physician, suggested to him the propriety of making his will; he said, he could not think it then necessary, as he was so much better; upon which Dr. W. desisted from farther conversation’ on the subject, until Mrs. Winn, the sister of the deceased, came into the room, to whom Dr. W. mentioned what had passed, and she earnestly desired him to renew the subject, sa3ring she had often heard her brother say he intended to make a will, and to liberate some of his slaves. At her instance, Dr. W. repeated the suggestion to the decedent, who again said he thought it unnecessary, but if it was his sister’s wish or if it was thought best, he had no objection. There were present in the room, besides Mrs. Winn and Dr. Worsham, the other three witnesses, Pollard, Banes and Morgan, and the ap-pellees Bob, Trank and Polly. Dr. W. handed Morgan, pen, ink and paper, telling him that Mr. Schwartz wished his will written: Morgan seated himself at a table, in a distant part of the room, some twelve feet from the sick man’s bed. Then Dr. W. returned to the bed side, and Schwartz commenced by saying “he wished his real estate to be disposed of, and the proceeds ^appropriated to the payment of his just debts.” Dr. W. went to Morgan, and reported this disposition to him, and he committed it to paper. Dr. W. again returned to Schwartz, and he then asked his servant Bob, whether he wished to be freed; Bob said he was very willing to serve him, but he had rather be freed than have another master; Scwhartz said “he should be freed.” Schwartz then asked Prank, whether he wished to be freed; a conversation ensued similar to that with Bob, which ended in Schwartz’s saying “he should be freed.” Polly then said to her master “what are you going to do for poor me?” Schwartz said, “Polly and her children should be freed.” Bob then asked, “as he had freed him, would he not also free his wife,” BettjT? Schwartz said, “Betty and her children should be freed.” These dispositions being thus declared by Schwartz, Dr. W. went to Morgan, and reported them to him, and he reduced them to writing. Schwartz then said, “he desired that one half of the remainder of his property should be given to his niece Juliana Malvina Winn” (which was in like manner communicated to Morgan, and by him written) “and the other half to his niece Virginia;” upon which Mrs. Winn asked him, if he did not intend to leave her sister Mary something? and his answer was understood to be, that Marjr was to share equally with Virginia; but this was said so indistinctly, that it was not communicated to Morgan and written down, and being connected with the gift to Virginia, neither was that, though distinctly uttered, written down. At the time the dispositions which were written down, were uttered by Schwartz, he was perfectly in his senses: as he spoke the last indistinct words, he was taken with a strangling, and it was soon perceived he was dying. He did not desire that Morgan, or any one else, should write his will; he was not expressly told, that Morgan was to write it; it was .doubtful, whether he knew that Morgan was engaged in writing it; it was probable he did not know it; it was doubtful, whether he could have seen, and probable he did not see, Morgan *writing at the table, from the bed where he was lying. He did not call upon any person present, to take notice, that the words he spoke were his will.
    The circuit court reversed the sentence of the county court, and admitted the contents of the paper to probat and record, as a nuncupative will. And from this sentence, Winn appealed to this court.
    In the argument of the cause here, by Spooner and Johnson for the appellant, and by Macfarland and Leigh, assigned by the court counsel for the appellees, three points, made by the counsel for the appellant, were discussed:
    1. Whether it was competent to the appel-lees, being in fact held in slavery, to prosecute such a suit as this in forma pauperis? A suit not to recover their freedom by reason of an emancipation by a will duly recorded, but to have the wilt under which they claimed freedom, recorded in a court of probat. The question turned upon the construction of the statuLe concerning pauper suits, 1 Rev. Code, ch. 124, $ 4, 5, p. 481, and the statute authorising the emancipation of slaves, Id. ch. 11, | S3, p. 433.
    2. Whether an emancipation of slaves could be made by a nuncupative will? Which depended on the construction of the statute last cited, which provides, that ‘ ‘it shall be lawful for any person, by his or her last will and testament, or by any other instrument in writing, under his or her hand and seal, attested and proved in the county or corporation court, by two witnesses, or acknowledged by the party in the court of the county where he or she resides, to emancipate and set free his or her slaves or any of them” &c.
    3. Whether this was a good nuncupative will? The counsel for the appellant referred to the provision of the statute of wills concerning nuncupative wills, Id. ch. 104, $ 7, p. 377, which is taken (with some variation not affecting this question) from the eng-lish statute 29 Car. 2, ch. 3, § 19. And they said, it was impossible a man could make *a nuncupative will, without intending to do so, and without knowing that he was doing it. Here, if the deceased intended to make any will, and with that intention, uttered the supposed testamentary words, he intended to make a written will, and was prevented from completing his purpose by the approach of death. But the words were not themselves testamentary at all; they were, at the most, only declarations of what would be his dispositions when he should make his will. Weeden v. Bartlett & al., 6 Munf. 123. He did not know, that his words were reported to Morgan, and that he was committing them to writing: he did not know, that Morgan was writing down his words. He did not, and could not, see him at the table. He did not call upon any person present ‘‘to take notice or bear testimony that such was his will, or words of the like import;” which the statute expressly required to make a good nuncupative will.
    The appellees’ counsel cited Mason v. Dunman, 1 Munf. 4S6, to shew, that notes taken by the bed side of a dying man, may be a good nuncupative will, provided it appeared that the words noted were uttered with a testamentary intent, though it appeared that the testator intended to make a written will, and that he did not call upon persons present “to take notice or bear testimony that such was his will:” any circumstance tantamount to that, would suffice. That the words spoken by Schwartz, were spoken with testamentary intent, appeared from the evidence. He agreed to make his will; and after the preparation for writing it had been made, though he was not expressly told that such preparation was made, he commenced (of his own accord, as they understood the evidence) with the direction for the sale of his land, which was plainly a testamentary disposition. He commenced, likewise, the conversation with Bob and Frank, which ended in the declaration that they should be free. The emancipation, indeed, of Polly and her children was suggested by her, and that of Hetty and her children, by her husband: but the gift of one half of the residue of his estate to his niece J. M. Winn, uttered of his own accord, '^distinctly evinced, that he was, and had been from the beginning, speaking with a present testamentary intent. They thought it the fair inference from the evidence, that he did know, that Morgan was writing down his dispositions as he uttered them to Dr. Worsham, and that he could and did see Morgan writing.
    
      
       Nuncupative Wills — Essentials to Validity. — On this duestion, the principal case Is quoted from in foot-note to Page v. Page, 2 Rob. 421.
    
    
      
       Wills — Right of Slaves to Have Proved. — The principal case is cited in Manns v. Givens, 7 Leigh 718.
    
    
      
       Nuncupative Wills — Emancipation of Slaves. — The principal case is cited in foot-note to Phoebe v. Boggess, 1 Gratt. 129. See monographic note on "Wills.”
    
   CARR, J.

In this case, three points were made in the argument: 1. Can the petitioners appear as parties in this controversy? 2. Can slaves be emancipated by a nuncupative will? 3. Is this a good nuncupative will? I shall consider this last point only. The doctrine of nuncupa-tive wills, was taken from the civil law, and is of very ancient date. The abuses and frauds, which were practised under it, gave rise to the provision of the statute 29 Car. 2, ch. 3, § 19, from which our act is, with some variations, taken. The intention of the statute was not to give a new principle, but to correcta mischief; and it should be so construed as to advance the remedy. It is said, in a note on Matthews v. Warner, 4 Ves. 196, that the case of Cole v. Mordaunt, before lord chancellor Nottingham, in the 28th year of Charles II. was the principal case which gave rise to the english statute of frauds. That was a case in which nine witnesses swore to a nuncu-pative will; and yet, on a trial at bar in the court of king’s bench, it appeared that most of them were perjured, and Mrs. Cole guilty of subornation. In the case before us, there is not the slightest imputation upon the witnesses; but that must not influence our decision upon the law. The deceased was truly in extremis; for before the business was finished, his mind began to wander; he was taken with a strangling; they found he was dying. He seems to have been indisposed to make a will, if capable: he desired no one to write it; he did not know that Morgan was writing; Morgan sat in a distant part of the room, and did not pretend to take the words from the sick man, but they were reported to him by another ; and, if the reporter misunderstood the speaker, or Morgan the Reporter, the paper would not contain his will. The statute is imperative in requiring that it be proved by two witnesses, “that the testator called on some person present, to take notice or bear testimony that such is his will, or words of the like import.” Here we have neither the words, nor any of like import; no expression, indeed, or act of the sick man, to shew that he thought himself making his will; or whether he intended it to be by parol, or in writing; or that he wished any person to bear testimony to what was doing. To establish such a will as this, would, I think, be of the most dangerous tendency. I am clear, then, that the very foundation of the claim of the appellees fails here. It is not necessary, therefore, for the decision of this case, to consider the other points ; and, as they are of great importance, and perfectly new, I had rather leave them open for future consideration.

BROOKE, J., and TUCKER, P.,

said, they concurred in the opinion of Carr, J., that this was not a good nuncupative will. And they intimated, that they thought, slaves could not be emancipated by a nuncupative will, and had intended to give that opinion on that point; but they yielded to the suggestion of Carr, J., that the point should be left open for consideration when it should be necessary to decide it.

Sentence reversed.  