Opinion
July Term, 1818.
From Wilkes.
The persons who are introduced to establish a nuncupative will must have been specially called on by the testator to bear witness to what he was saying. Where the words uttered were drawn from the testator by the person interested to establish them as a will, they will not constitute a good nuncupative will.
THIS was a petition filed for a distributive share of the estate of James Brown, deceased, to which defendant answered, claiming the property by virtue of a nuncupative will.
It appeared from the record of Wilkes County Court, which made part of the case, that the court had directed to be recorded as a nuncupative will certain affidavits, which were as follows:
STATE OF NORTH CAROLINA,} } 25 August, 1814. WILKES COUNTY. }
This day came John N. Green before me and made oath in due form of law and saith that on Saturday, the day before James Brown died, the said Brown was in a low state of health, but in his senses, and was asked in his presence by Leannah Chapman what he wanted to be done with his property if he should die. His reply was, for her to do with it as she pleased.
George Chapman came before me, the subscribing justice for said county, and made oath in due form of law, and saith that he heard James Brown say the same words in answer to what he was asked by Leannah Chapman: for her to do with his property as she pleased, as is stated in the above by Mr. Green. Sworn to, etc., 25 August, 1814.
James Brown died on 14 August, 1814.
If we were informed by the records of the County Court of Wilkes that the nuncupative will of James Brown had been proved in court, and we should be furnished with a (351) copy of it properly authenticated, I think we would be bound by it; but in the present instance it seems that the County Court has admitted to record two affidavits which fall far short of establishing a nuncupative will. It is true, the record speaks of them as a nuncupative will, but that does not make them one. I think we cannot view them as such, although they have been directed to be recorded, and that the petitioner has a right to recover. It does not appear that James Brown specially required either of the witnesses to bear witness to what he was saying; the words he uttered were drawn from him by the person whose interest it is to establish them as a will. My opinion is that the petitioner should have a decree.
PER CURIAM.
Judgment for the petitioner.
Cited: Haden v. Bradshaw, 60 N.C. 261; Bundrick v. Haygood, 106 N.C. 472.