Bundrick v. . Haygood

11 S.E. 423, 106 N.C. 468

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

MeerimoN, C. J.:

The Court below decided that the evidence of the two witnesses produced on the trial to prove the making of the nuncupative will of th§ alleged testatrix was not evidence for that purpose, and we cannot hesitate to concur in that decision.

The statute {The Code, § 2148), prescribing how wills shall be proven, among other things, provides as follows: “Wills and testaments must be admitted to probate only in the following manner: * * * 3. In case of a nuncupative will, on the oath of at least two credible witnesses present at the making thereof, who state they were specially required to bear witness thereto^by the testator himself. It must also be proved that such nuncupative will was made in the testator’s last sickness, in his own habitation, or where he had been previously resident for at least ten days, unless he died on a journey or from home,” &c.

The requisites of this statutory provision must be strictly complied with and observed, in all material respects, in order to prevent opportunity for fraudulent practices on the part of such persons as would be disposed to obtain undue advantage of persons in their last sickness as to the final disposition of 'their property; and also to prevent mischiefs that might arise from the ignorance, misapprehension or dishonest purposes of persons called upon to be the witnesses of such wills. The purpose of such requisites is to prevent the fabrication of such wills; they are necessary, and it is essential to observe them strictly. Brown v. Brown, 2 Murphey, 350; Rankin v. Rankin, 9 Ired., 156; Wester v. Wester, 5 Jones, 95; Haden v. Bradshaw, 1 Winst., 263; Smith v. Smith, 63 N. C , 637; Ired. on Ex’rs, 21.

The evidence of the witnesses of the alleged will accepted as true, did not prove a substantial compliance on the part of the supposed testatrix with the prescribed requisites that must be observed in making a nuncupative will. She should have expressed her purpose to make a will. Perhaps it was not necessary that she should do so in terms, but she should have done so in some certain way. She did not do so, unless by mere implication. She said she wanted to see her sister— naming her — wanted to give her sister all her things— wanted her to have them, but she did not say “I give her all my things — all my property,” or “I will make a will and by it give my things to her,” nor any like expression. It seems that she was anxious to see her sister, so that she might give her the property — the things — before she died.

But if she intended by what she said to dispose of her property, she should, to that end, have specially -required at least two credible witnesses to bear*witness that she had made her will — that she had so disposed of her propertjr. But she did not specially, or at all, require the witnesses who testified, or either of them, to so bear witness. She did not sa)7, in terms or effect, to these witnesses, “I want you — or I charge you — or I require you to bear wdfness that I give my property to my sister,” naming her. She should have made the witnesses clearly sensible of the fact that she specially required them to so bear witness, so that they might be charged to do so, and to the further end they might be able to so state when called upon to testify as such witnesses. The statute specially requires that they shall state that they were so required. One of these witnesses dots not say or intimate that she was called upon to be a witness, or that she so regarded herself. She was the nurse, and what she heard was casual — her attention was not directed to what the supposed testatrix said by the latter, or any other person. The other witness said: “I considered what she said to me her will, but I don’t know what it is, nor whether she did. She didn’t call anybody else to witness it.” The evidence was, we think, insufficient, in any reasonable view of it, to prove material and essential facts — only gave rise to vague conjecture.

Judgment affirmed.