
    G. W. Dorsey vs. Sheppard and wife, and Sears.
    
      December 1841.
    Nuncupative wills are not favorites of the law.
    The factum of a nuncupative will it requires tobe proved, by evidence more strict, and stringent, than that of a written one in every single particular.
    The testamentary capacity, and the animus testandi, at the time of the alleged nuncupation, must appear by the clearest, and most indisputable testimony.
    A will made by interrogatory, may he valid; but when so made, tho court must be more upon its guard against importunity, more jealous of capacity, and more strict in requiring proof of spontaniety, and volition, than it would be in an ordinary case.
    A nuncupative will which contains no bequests, which merely appoints an executor, is not subject to the operation of the statute of frauds in relation-to such testaments; nor to that of the act of 1810, chap. 34.
    A written will, by the statute 12 Car. 2, chap. 24, is indispensible to the-appointment of a testamentary guardian.
    When the want of mental capacity to make a will, is urged as the ground of objection to the probat of a nuncupation, it is the duty of the party offering such will, to prove such capacity by the clearest testimony.
    Where the testimony leaves the mind in a state of doubt as to the capacity of the testator to make a nuncupative will, it is the duty of the Orphans' court not to admit it to probat.
    Where a nuncupative will is drawn from the decedent by interrogatories, full and clear proof of spontaniety of the animus testandi is indispensible.
    Appeal from the Orphans’ court of Calvert county.
    
      Caveat by the appellees against the admission to probat of the nuncupative will oí'Hezekiah Coberth.
    
    The appellant moved the court to admit the testimony of the subscribing witnesses to a paper or instrument of writing, purporting to be the nuncupative will of H. Coberth, deceased, and which paper was as follows:
    uWe, the undersigned, certify, that Mr. Hezekiah Coberth, “ on the morning of the 28th October, 1841, said in our pre= “sence, that he wished Hr. George W. Horsey to act as trustee “for his son, to be his administrator, and to use his own words, “he wished him to be his general agent; he moreover said, he “intended it to be his last will. J. A. Sedwick,
    Loch L. Weems,
    James Williams,
    James M. Solleks.”
    To this paper was attached an affidavit, made before two justices of the peace of Calvert county, by all the witnesses thereto, that the deceased did make the above statement in their presence, and at the time of making the same, he was of a sound and disposing mind, to the best of their knowledge and belief.
    The paper and deposition were offered for the purpose of proving as well what was the last will and testament of the deceased, as for explaining the said paper.
    The caveators objected—
    1. That the said paper was not in the form required by law.
    2. That it cannot be construed as the appointment of a guardian or executor.
    3. That the same is not attested and proved according to law.
    4. That the same was procured al the instance, and by the solicitation, importunities, and request, of persons present at the time, which the testator was too weak to resist.
    The Orphans5 court, after hearing both parties, ordered the prayer of the motion to be granted, and then proceeded to take the following proof:
    The deposition of Hr. John Jl. Sedwick, of lawful age, after, &c., deposeth and saith, that the morning on which Mr. Uezelciah Coberth died, he, together with Dr. L. L, Weems, as attending physicians, thought it their duty to suggest to Mr. Hezekiah Coberth, that if he wished to make any arrangement of his affairs, that was the proper time, as he had no time to lose, they having understood that he intended to do so ; when he replied, that he wished to make some arrangement, hut wanted some little rest before doing so, and after being .reminded by Sr. L. L. Weems, that if he wished to do anything respecting his affairs it could be made valid. Mr. Hezekiah Coberth then cast his eyes around and called for Sr* George W. Sorsey, the individual mentioned in the paper purporting to be his nuncupative will. We thought he was about to speak, but he did not at that moment. He, the deponent, then asked Mr. Hezekiah Coberth if he wished Sr. George W. Sorsey- to take care of his child,, and-at the same time asked Mr. Hezekiah Coberth if he wished him,. Sr. Sorsey, to be trustee to his child, and he answeredin the affirmative to both-.This deponent then asked him if he wished Sr. George W* Sorsey to be his administrator, to which he answered yes, and added, general agent. There was then a little pause, after which Sr. L. L. Weems asked if he wished it to be his last will, to whieh he first nodded assent, and afterwards said yes,, which was said distinctly, and emphatically spoken. This deponent further says, that Sr. George W. Sorsey is the same individual mentioned in- the paper referred to-. This deponent-further says, that the reason why he mentioned this subject to* Hezekiah Coberth was, his having heard him during.his illness-express a wishto make some arrangement respecting his-affairs; that they were not at that time as he wished, and that he wished that they, Sr. L. L. Weems and himself, should do-something for him, as he wished to recover or recruit, to make some arrangements ;• and that at the time he, Mr. Hezekiah Coberth, made this declaration, he was perfectly sane, and the aforementioned words; purporting to he his last will, were spoken by Mr. Hezekiah Coberth in the presence of him the deponent, Dr. L. L. Weems, James M. Sollers and James Williams ; and that they were spoken in his last illness and in his own house and place of residence; and that he this deponent was called to Mr. Hezekiah Coberth, Saturday previous' to his death, and that the words expressive of a disposition to make some arrangement were spoken-apait on Monday and a'part on-Tuesday or Wednesday; and further this deponent saith not.
    Deposition of St. Loach L. Weems,, of lawful age, being duly sworn on, &c., deposeth and saith, that he was called to see Mr. Hezekiah Coberth on Monday afternoon about two o’clock. On Thursday morning he found him in a dying condition, but perfectly rational. He this deponent stated to Hr. John A. Sedwick, that it was his duty to ask Mr. Hezekiah Coberth if he did not wish to make some arrangement, and that Dr. John A. Sedwick mentioned this t<? him, and Mr. Hezekiah Coberth replied, that he wanted about one hour’s rest, that he was very much fatigued. This deponent then observed that if he, Mr. Coberth, wished to make any provision for his little son, that was the time, and rest afterwards. He, this deponent, further stated to Mr. Hezekiah Coberth, that any arrangement that he wished could be attended to for him afterwards, and that James M. Sollers and James Williams then assembled around his bed, and that this deponent and Dr. John A. Sedwick were already at the bedside. That Dr. George W. Dorsey came to the bedside also, and that he is not satisfied that he was called by Mr. Hezekiah Coberth or not; that then Mr. Hezekiah Coberth took hold of Dr. George W. Dorsey's hand; he then asked Mm if he wanted him, and Mr. Hezekiah Coberth then stated, using his own phrase, I wish you to be trustee to my little son and my general agent. He this deponent then asked Mr. Hezekiah Coberlh, whether, in the event of its being necessary, did he wish Dr. George W Dorsey to administer on his estate, to which he replied yes, and general agency. Dr. John A. Sedwick then asked him whether he wished us the said witnesses, to witness this to be his last will and testament. He first gave assent by nodding his head, and then said, I do; and that he, this deponent, was certain that Mr. Hezekiah Coberth heard them, and that the words aforesaid were spoken in his last illness, and in his ■own house and his place of residence, and in the presence of this deponent, James M. Sollers, Dr. John A. Sedwick and James Williams, who were all standing around his bedside at the time. And the said deponent further saith, that Dr. George W. Dorsey married the daughter of Hezekiah Coberth, deceased, which daughter died without issue previous to the death of the said Hezekiah Coberth, and the said Hezekiah Coberth had a peculiar way of expressing himself; and further this deponent saith not.
    The deposition of James M. Boilers, after, &c., deposeth and saith, that he was sent for by Dr. George W. Dorsey to see Mr. Hezekiah Coberth. After being there some time Dr. L. L. Weems and Dr. John A. Sedwick came in some time after they had been there. Dr. John A. Sedwick asked Mr. Hezekiah Coberth if he did not wish to see Mr. James A. Bond to do some writing or business for him; he answered he did, but he wished some rest. Dr. L. L. Weems then said to Mr. Hezekiah Coberth, you had better say what you wish to say and rest afterwards. He Mr. Hezekiah Coberth then looked round and asked for Dr. George W. Dorsey, who was at that time setting on the small bedside; he arose and went to the bedside of Mr. Hezekiah Coberth, and he then reached out his hand and caught Dr. George W. Dorsey by the hand; he then asked what he wanted, and he said he must rest. Dr. L. L. Weems then said to Mr. Hezekiah Coberth, I would not put it off, sir; whatever you wish to say, say it in our presence and it shall be attended to. He then said something in an indirect tone which he this deponent did not understand. Dr. L. L. Weems then asked Mr. Hezekiah Coberth if he wished Dr. George W. Dorsey to be guardian to his little son, and his reply was yes, distinctly; and after some pause he Mr. Hezekiah Coberth said general trustee; and he was then asked by Dr. L. L. Weems if he wished Dr. George W. Dorsey to administer on his estate, and he then replied yes; and after a pause, my general agent. And Dr. John A. Sedwick then asked Mr. Hezekiah Coberth if he wished us, the witnesses, to consider this his last will and testament. He Mr. Hezekiah Coberth then nodded his head and said yes; and that this conversation was during the last illness of Mr. Hezekiah Coberth, and at his house and his place of residence, and in the presence off this deponent, and James Williams, Dr. John A. Sedwick and Dr. L. L. Weems, all of whom were standing around his bedside at that time. This deponent believes that Mr. Hezekiah Coberth was rational at the time; and further this deponent saith not.
    
      The deposition of James Williams, after, &c., deposeth and saith, that on Thursday morning he visited Si. Leonards, and hearing of Hezekiah Coberth?s illness, he went to see him, when Dr. Loch L. Weems, who was then present at the time, said to Mr. Coberth, whilst he this deponent was present, that any request that he Mr. H. Coberth would make before these gentlemen would be just as good as a will, and Mr. Coberth replied yes. Mr. Coberth then called for Dr. George W. Dorsey, and the Doctor then took hold of his hand; when Dr. John A. Sedwick or Dr. Loch L. Weems asked Mr. Coberth if he wished Dr. George W. Dorsey to take care of his child, or to be his administrator; and at the same time Dr. Loch L. Weems asked Mr. Coberth if lie considered that to be his last will and testament, and he nodded assent and said yes; and that the words purporting to be his last will were spoken during the last illness of Mr. Coberth, and at his house, and in the presence of this deponent, Dr. John A. Seduiick, Dr. Loch L. Weems and James M. Sollers, who were all standing around his bedside at the time, in his house and his place of residence; and further this deponent saith not.
    The deposition of Thomas Edmonds, after, &c., deposeth and saith, that he knew Ann and Elizabeth Coberth to be sisters of the half-blood to Hezekiah Coberth; and that they removed to the city oí Annapolis some years ago; and that one of them married a Mr. Sears, and the other a Mr. McJYeir ; and further this deponent saith not.
    The deposition of Jesse J. Dalrymple, after, See., deposeth and saith, that he heard Mr. H. Coberth, in his life time say, that the mother of the McJYeir,s was his sister; and further this deponent saith not.
    The deposition of William II. Tuck, after, &c., deposeth and saith, that he knew Basil Sheppard and Elizabeth, his wife, of Annapolis; and that Elizabeth Sheppard is the mother of George and William McJYeir, both of whom he has heard say .that their mother and Mrs. Ann Sears are sisters of the half-blood of the late Hezekiah Coberth; and further this deponent saith not.
    
      The orphans court having heard the parties by their counsel and duly considered the testimony in the case, do adjudge, order and decree, that the said paper offered for probat as the nuncupative will of the said H. Coberth, be and the same is hereby rejected, and ordered not to be admitted to probat as his will.
    From which decree the said George W. Dorsey appealed.
    It was agreed'in the appellate court to amend the record so as to show that it was in proof in the orphans court, that the deceased Coberth, died possessed of personal property of the value of several thousand dollars.
    The cause was argued before Buchanan, C. J., Stephen, Dorsey, Chambers and Spence, Judges.
    By Sollers and S. Pinkney for the appellant, and
    By Tuck and Alexander for the appellees,
   Dorsey, J.,

delivered the opinion of this court.

Nuncupative wills, though tolerated, are by ao means favorites of the law. Independent of the statute of frauds altogether, the factum of a nuncupative will requires to be proved by evidence more strict and stringent, than that of a written one in every single particular. This is requisite in consideration of the facilities with which frauds in setting up nuncupative wills are obviously attended. Facilities which absolutely require to be counteracted, by courts insisting on the strictest proof as to the facta of such alleged wills. Hence the testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation, must appear, in the case of a nuncupative will, by the clearest and most indisputable testimony. See Lemarna vs. Bonsall, 2 Eng. Eccl. Rep. 147. 1 Williams on Executors, 62, and the case of Priscilla E. Yarnall's will, 4 Rawle’s Rep. 62. A will made by interrogatories is valid; but undoubtedly, whenever a will is so made, the court must be more upon its guard against importunity, more jealous of capacity, and more strict in requiring proof of spontaniety and volition, than it would be in an ordinary case. 1 Eng. Eccl. Rep. 32, Green vs. Skipworth and others. According to these sound and well-established principles, let us proceed to the examination of the case before us: first, premising that no bequests having been made by the alleged nuncupative will, it is not subject to the operation of the statute of frauds in relation to such testaments ; nor to that of the act of Assembly of 1810, cbap. 34. The only effect of the will, if admitted to probat, and it were competent to effectuate the supposed intent of the testator, would be to secure to the appellant the appointment of executor or administrator of the deceased, and the guardianship of his only child. The latter object, however, could not be accomplished; a written will being made indispensible for such a purpose, by the statute of 12 Car. 2, chap. 24.

To the admission to probat of the will in question, a number of objections were interposed in the orphans court, most of which we deem it unnecessary to examine. That on which we think the decision of the cause mainly depends, as far as such objections are concerned, is the allegation of the appellees, that the will, attempted to be proved, was not the voluntary act and free will of the deceased, but he was induced to speak of his affairs, as mentioned in said paper, by the suggestion of others, only a short time before his death, and when he was not in a mental or physical condition to make a will* or execute a valid deed or contract; and that in the situation in which he was placed, and the circumstances connected with the execution of said paper, he was too weak to transact business, or to resist the suggestions that were made to him, of the necessity of making a will; and said words, attributed to the' deceased, were used by him in consequence of the undue influence of said suggestions. To establish the will, the appellant produced four witnesses, being the only persons, except himself, who appear to have been with the deceased at the time it is alleged to have been made. Two of those were the attending physicians; one a person sent for by the appellant, and the fourth an accidental visitor. The orphans’ court proceeded to take their testimony; and as respects the sanity of the decedent, what have they testified ? The first witness Dr. Sedwick, after detailing what he alleged as having occurred on the morning of the making of Coberth’s testament, and of his death, proeeéds thus“this deponent further" says, that the reason why he mentioned this subject to Hezekiah Coberth was; his having heard him, during his illness, express a wish to" make some arrangement respecting his affairs; that they weré not at that time, as he wished; and that he wished that they, Dr. L. L. Weems and himself, should do something for him, as he wished to recover and recruit to make some arrangements; and that at the time he Hezekiah Coberth made these declarations, he was perfectly sane; and that the aforementioned words,purporting to be his last will, were spoken by Mr. Hezekiah Coberth in the presence of him the deponent, Dr. L. L. Weems, James M. Sollers and James Williams; and that they were Spoken in his last illnésá, and in his own house and place of fesidence; and that he this deponent was called to Mr. Heze-Mah Coberth, on Saturday previous to his death; and that the words, expressive of a disposition to make some arrangement, were spoken a part on Monday, and a part on Tuésday or Wednesday.” The deceased died on Thursday morning, as proved by Dr. Sedwick. He gives no testimony as to the" sanity of the mind of the decedent, at the time of the nuncupation in question, but confines his evidence on this subject, to its state some one, two or three days before. Dr. Weems states that, “on Thursday morning he found him [Coberth,} in a dying condition, but perfectly rational.” James M. Sollers says, “he believes that Mr. Hezekiah Coberth was rational” at the time of the alleged nuncupation. But what degree of rationality was meant by the witnéss ? "Whether a mere exemption from delirium, or such a dégree of intellect as would enable its possessor to make a valid deed or contract, ór a reasonable or sensible disposition of his property, does not appear.James Williams, the remaining witness, gives no testimony as’ to the sanity of the deceased. When then we advert to the fact, that the want of mental capacity in the deceased, was a ground of objection to the probat; that, independently of such objection, it was the duly of the appellant to prove such •capacity by the clearest and most indisputable testimony; that of the four witnesses to the will, but two of them testify as to such capacity; that he who does so most strongly, says, that when he visited Coherth, on the morning of the alleged nuncupation, (which was the morning of his death,) he found him in a dying condition; that all the facts given in evidence by the witnesses as to the conduct of the deceased, and those around him, during the time of the alleged nuncupation, leave upon the mind doubts as to the mental capacity of the testator. We think the orphans court were right, upon that ground, in refusing to admit to probat the proffered nuncupative will. We think, too, looking to all the proof in the cause, and the manner in which, by interrogatories, the alleged nuncupation was drawn from the decedent, that there was not such proof of sponlaniety, and of the animus testandi as is indispensable to the validity of such a will. The only reported case, which we have met with of a will made by interrogatories to the testator, is that of Green vs. Skipworth and others, 1 Eng. Eccl. Rep. 32: at which it is only necessary to glance for a moment, to see that its admission to prohat stands upon grounds infinitely stronger than could be urged in favor of that now under consideration. To grant probat to the will now before us, would, in our opinion, establish a precedent fraught with the most dangerous ¡tendency.

THE DECREE OF THE ORPHAN'S COURT IS AFFIRMED WITH COSTS.  