
    Baker et als. vs. Dodson.
    To make a nuncupative will good, it is not necessary that the testator should have specially required two persons to bear witness to his disposition of his effects in the words of the statute. It is sufficient if there exists in his mind at the time a fixed purpose to perform a testamentary act, and that two persons feel themselves called upon by the language addressed to them to notice the disposition of his effects.
    At the September term, 1841, of the County Court of Maury county, Eliza Dodson, the widow of William R. Dodson, presented for probate the alleged nuncupative will of said Dodson, deceased. At the next term of the court, Baker, and wife, who was a sister of the deceased, appeared, and others, the brothers and sisters of deceased, and contested the said alleged will; and an issue having been made up, the case was certified to the Circuit Court of Maury county for trial. At the January term, 1843, Dillahunty, Judge, presiding, the case was submitted to a jury. It appeared, that Dodson married in 1840, and died in 1841, leaving a widow and no children or parents, but brothers and sisters. Dodson was taken sick at his own house in Maury county; and on Monday night, the 23d day of August, 1841, he exclaimed: “I am gone — I am lost.” He then remained silent some fifteen minutes, when Boyd and Hays came in. He addressed himself to them without calling them by name, saying: “I wish to make a disposition of my effects.” He then proceeded to dispose of his effects. He said he had a nephew in Texas, named after him; to whom he gave something. He said he wished Mrs. Overton, who had waited on him, to be well paid for her services, and the balance of his estate something upwards of a thousand dollars in value to be given to his wife. He assigned as a reason for giving her his whole estate, that, he had treated her badly on some occasions, and wished to do her justice in the disposition of his estate. He died on Friday night following. This is the substance of all testimony on the point, on which this case was determined in the Supreme Court.
    A Verdict was given establishing the paper offered for probate, as the nuncupative will of the deceased. A motion was made for a new trial. This motion was overruled, and a judgment rendered on it. The defendants appealed.
    
      Thomas, for plaintiffs in error.
    Williams on Executors, 58, 61; 2 Eel. 229; 1 Eel. 230; 6 Eel. 253; 10 Yerg. 601; Swin. on Wills, 59, 355, 356; Kent’s Com. 517.
    
      D. Campbell, for defendant in error.
   Reese, J.

delivered the opinion of the court.

The question in this case is embraced within narrow limits. It turns upon the sufficiency of the proof, and the accuracy of the charge to the jury as to what is technically called the rogatio testium of a nuncupative will propounded for probate. Two witnesses, John B. Hays and Laird H. Boyd, testified, that the deceased, addressing himself to them, said: “I wish to make a disposition of my effects” — and then went on to declare the nun-cupation.

They felt and understood themselves by such address to them, and the language used, to be called on specially to notice the factum of the will. The will being made, the deceased explained to them the reasons and motives which produced the particular disposition. There is no doubt, from the testimony of these witnesses, that it was the fixed purpose of the party to perform,.and that he believed, he was performing, a testamentary act.

The leading object of the 15th sec. of the act of 1784, as to the special requirement to bear witness, or the rogatio testium, is doubtless to distinguish between a valid nuncupation, and casual conversations by one in his illness, as to his wishes on the subject of his property, and to guard against the latter being imposed upon the court as testamentary. But it is not necessary for such purpose, that the testator (if he may be so called) should know or quote the very language of the statute. It is sufficient, if by intelligent act and language, he invoke their special attention and attestation to what he is going to say, or to what he has said. If he address them, and say, I wish to make a disposition of my effects, and go on then and make the factum of said disposition, we cannot say, that the statute has not been complied with.

The court charged that it would be sufficient, if one witness heard and proved the rogatio; and such charge does not appear to be contrary to the authorities found in the Ecclesiastical Reports.

This court said, in the case of Tally vs. Butterworth, 10 Yer. 503, obiter et arguendo, that perhaps all the witnesses must hear and prove the rogatio.

It may be, that this is not necessary. It is not material, however. as it seems to us, to decide the point: for here, two witnesses both heard and proved the rogatio.

Let the judgment be affirmed.  