Opinion
(June Term, 1864.)
Where a person, in his last sickness, desired the physician to write his will, and the physician declined to do it, but told him that A. and B. were in the piazza, and that he might make his will by oral declarations in their presence; and A. and B. were called into the sick man's presence by his direction, and, addressing A. by name, he stated to him in presence of B. and the physician how he wished his property to be divided, and named A. and another as his executors; that is sufficient rogatio testium to make a valid nuncupative will.
ISSUE of devisavit vel non, tried before Bailey, J., at Fall Term, 1863, of ROWAN.
Henry R. Bradshaw, a citizen of the county of Cabarrus, was on a visit to his brother-in-law, James W. Haden, who lives in the county of Davidson, and while there was taken sick and continued so until he died on 1 May, 1863. Dr. Shamwell attended him as his physician. He testified that he was requested by the deceased to write his will and also to send for a minister of the gospel. The doctor told him that he could not write his will then, but that he (the deceased) could make a will by expressing his wishes before two or three witnesses, and that March and Smith were in the piazza. The deceased then requested him to call them into the room. The doctor called them into the bedroom where the deceased lay. The deceased addressed March by the name of Hense, saying:
(260) "Hense, I am worth about $13,000 in money and notes. I wish this equally divided between the children of my deceased sister, Elizabeth Haden, and my sister Julia Cuthsell. I want my sister Julia's share so arranged that it will not come into the possession of her husband, nor for him to have anything to do with it, but to be for the use of her and her children. I want Obadiah M. Smith to have $500 for waiting on me. I want my burial expenses and my debts paid, and the balance of my property divided between my half sisters, so that Laura may have a fraction the most. I don't care so Laura gets a fraction the most; there will not be a great deal. I wish A. H. March and James H. Haden to be my executors and settle up my business."
This witness also stated that the deceased was of sound mind and memory at the time.
A. H. March testified that when he went into the room he was addressed by deceased as "Hense," and he made a disposition of his property in the words stated by Dr. Shamwell. He further said that the deceased was of sound mind at the time.
The words above stated to have been spoken by deceased in his last illness were reduced to writing within four days after they were spoken. The words as reduced to writing were propounded as the last will and testament of Henry R. Bradshaw. The jury, under instructions as to the sanity of the deceased, rendered a verdict that it was the last will and testament of the deceased; the question of law being reserved whether the requisitions of the statute had been complied with. The court being of opinion with the caveators, set the verdict aside.
Boyden and Winston, Sr., for the propounders.
Wilson for the caveators.
In the probate of a nuncupative will the court (261) ought to see that everything which the statute requires has been fully and faithfully observed. Rankin v. Rankin, 31 N.C. 156; Brown v. Brown, 6 N.C. 350. In the present case it is admitted by the counsel for the caveators that every requisition of the act (Rev. Code, ch. 119, sec. 11) has been complied with except what is called the rogatio testium, the calling upon the witnesses to the will, or some of them, "to bear witness thereto," by the testator himself. This the counsel contends was not done; but we think he is clearly mistaken. The witnesses to the will were Dr. G. N. Shamwell, A. H. March, and O. M. Smith, the last of whom was not examined because he was a legatee. Exclusive of Smith, there were two witnesses, the number required by the statute. Of these, A. H. March was unquestionably called upon to bear witness to the will. He was invited into the room for that very purpose, was addressed by the testator, who proceeded to state what he wished to be done with his property. It is true that he did not say to March that it was his will which he was making, but he stated what disposition he wished to be made of his property, and to show that it was in contemplation of death, he named the persons who were to act as executors. March, then, must have known that the testator was making his will, and that he himself was called upon to bear witness to it. Dr. Shamwell was then in the room, and heard the will, as it was dictated by the testator. But it is objected that he was not intended to be a witness, and was not addressed as such by the testator. In reply it may be said that it does not appear from the circumstances of the transaction that he was to be excluded as a witness; and from the fact that the testator had just before requested him to write his will, it may well be inferred that he was to be a witness, though the two other persons named were more especially to be called in for that purpose. The statute requires only that some of the witnesses present at the making of a nuncupative will shall be "specially required to bear witness" to it. The object of this requirement of the statute is that it may be known with certainty that the (262) testator was making his will, and that the witnesses, by having their attention drawn to it, may understand and be able to recollect what the will was. This object is, in the estimation of the law, accomplished when the attention of any one of the witnesses is called to the transaction, and that was certainly done in the present case. In our opinion, then, his Honor in the court below erred in holding and instructing the jury that the will was not well proved.
PER CURIAM. Error.
Cited: Smith v. Smith, 63 N.C. 640; Bundrick v. Haygood, 106 N.C. 472; In re Garland Will, 160 N.C. 558.