Ellington v. Dillard , 42 Ga. 361 ( 1871 )

Lochrane, C. J.,

concurring.

The question in this case is, whether the will made by Miss Ellington, in Prussia, can be set up as a nuncupative will, under the laws of Georgia. The Court below held, “that the paper propounded having been written in the life time of the testatrix, and signed by her, was not a good nuncupative will.” The will was declared verbally by Miss Ellington, while in a low condition of health, dying of consumption at Lipp Springs, Germany, in the presence of officials, who took down her declarations as they were made; and after they were thus written down, they were read over to her, approved by her, and she signed them, and they were witnessed by the two officials. It is admitted that one other witness was present during this time, who is brought in as a witness in the proceedings in this case. It will be noticed that these verbal declarations were reduced to writing in her presence, and signed by her.

The propounder lays down three general propositions upon which he relies: 1st. That this will was the verbal declarations of Miss Ellington touching the disposition of her estate after her death, which they say was accompanied by all the circumstances required to set up a nuncupative will under our laws. 2d. That the reducing these verbal declarations to writing did not alter their effect or character. 3d. That her signing them after they had been reduced to writing did not change their effect or character.

To strip this case of all unnecessary theories, and take its plain meaning, we find that'the testatrix did not intend any verbal or nuncupative will. She had time, opportunity and means to make such a will as she intended; and she made it. She was not in extremis, or in haste, and lived thirty days after this will was executed by her. The only difficulty was that she made a will before two witnesses, under the law of Prussia, instead of three, under the law of Georgia. If she had required the nurse to have signed at the time she signed and the others signed, she would have had a valid written will. But she did not, and hence arises the difficulty of the case.

If we take this will, as made by Miss Ellington, with her signature thereto, how can we arrive at the conclusion that she made a nuncupative will? Here is a will made by the testatrix thirty days before her death, written as she dictated it, signed by herself and two witnesses. Laying, for the present, every other question one side, can we hold this to be an unwritten will, under the laws of this State? It bears no mark of such an instrument; neither in its inception nor in its consummation, does it present the familiar indicia of a nuncupative will.

And, after all the consideration we are able to give the question, we have not seen any law controlling us to reverse the judgment of this Court, in Stamper vs. Hooks, 22 Georgia Reports, 604. That decision was the opinion of the Court with Judge Lumpkin, one of the greatest men that ever ornamented this Bench, with McDonald, a man of powerful and overtowering intellect, with Benning, a man of large imputation and ripe experience in the profession. These men have declared, as the solemn judgment of the Court, that the signing of the paper which the party intends to be his will, prevents its being a nuncupative will.

In Bacon’s Abridgement, nuncupative wills are defined, “by word or without writing.” We find it laid down in Redfield, 188-9: “In many instances, it has been held that instructions for the drawing up of a written will, declared before the requisite number of witnesses, may be received and proved, etc., as a nuncupative will, where the testator is, by the act of God, rendered incapable of completing his will, in the mode contemplated by him. But this has been denied, in some cases; and, as it seems to us, with the greater show of reason and authority, since the very definition of a nuncupative will, in all recent times, is that it be made by the testator when he is in extremis, and so conscious of the fact that he apprehends he has not time to make a will in writing, etc.”

But when the will is in writing, and signed and witnessed, it cannot beset up as an unwritten or nuncupative will. Our Code, section 2443, provides for reducing the words spoken to writing. The will is not a written, but a nuncupative, testamentary disposition of property. It is urged that this was a verbal declaration. So are mostly all wills not in the handwriting of the testator. This fact cannot change the law. If A, lying on his bed, verbally dictates his will to B, who writes it down and then reads it over to A, and he signs it, in the presence of three witnesses, this is a written will. If all this transpires in the presence of, and is attested by two witnesses, this failure of the proper attestation does not make it nuncupative, and this is this case.

Again, in this ease, the testatrix used no words at the time that bear the intention of her making a nuncupative will. The record shows that she desired the appointment of a judicial or official committee, not as witnesses to her nuncupation, but to execute her will, in consonance with the laws of Prussia. The record nowhere treats it as nuncupative, but as her last will. The language is her purpose to enact, which, not only in its ordinary sense, but as demonstrated by the proceedings, means the whole solemn ceremonial of a record, more than writing. Such is the conclusion of this will. After reading to her, she approved and signed, and the proceedings say, “ The last will having been verbally declared to-day by Miss Isabella Ellington, from the State of Georgia, in America, before the undersigned Deputies from the District Court, in order to be recorded in the minutes of the proceedings,” etc.

Then, we say, from the record, that the will and its execution both bear intrinsic evidence of the manner and intention of the act, and negatives all presumption of nuncupation or declaration intended to be left to witnesses, after her death, to set-up or establish. Again, we say that, under the weight of authority, from the evidence, she was not in extremis; that is to say, she was not in such condition, from the agreed statement of facts, as is contemplated by law for the making of nuncupative wills.

Our Code does not define the last sickness, but leaves us to go back to the common law and ascertain the meaning attached to the words by the judicial exposition of Courts. From the time of Henry VIII., the law had become established in England that such wills, to be of any avail, must be made in the last extremity, when the testator did not expect to recover and had not time to make a more deliberate will, or a will in writing. The English statute, 29 Car., II., is like our own. The law of nuncupative wills, as to last sickness, etc., in this country, has received the same construction. In Priscilla E. Jarnall’s will, 4 Rawle, it was held, the testator must be in extremis and have no time to make a written will; and one made by a consumptive patient, nine days before her death, was held not valid.

A nuncupative will is not good unless made when the testator is in extremis, or overtaken by a sudden and violent sickness, and has not time to make a written will, is the construction of “ last sickness,” under statutes of New York, 20 John’s, 502. A nuncupative will is only good when made in such extremity of the last sickness as precludes a written one: Bayce vs. Frick, 4 Watts and Serg., 357. A nuncupative will, to be valid, must be made by a person in extremis, who has not power, ability or time to make a written one: 10 Gratt., Va., 548. The same doctrine is held in Hans vs. Palmer, 21 Prim., 296; see 4 Bradf. N. Y., 154, ex re Thompson; also in Lucas vs. Gaff, 33 Miss., 629. And the doctrine we educe from the authorities is to the effect, “that, where the testator did not intend to make a nuncupative will, and there was time to make a written one, it cannot be set-up as a nuncupative will, if such writing was signed by the testator, though not formally witnessed.

The class of cases like that in 1st Gratt., 129, are not applicable to the case at bar. In that case, where there was not time to complete the written will, it was set-up as nuncupative ; but the act of completion must not have been dependent on mistake of the law, or other voluntary act of the testator. But in eases where extreme illness and the act of God prevents the fulfillment of the testator’s design, such as swooning and other extreme necessity. If it is the result of choice, t cannot be so regarded in the light of the law.

It may be properly stated, as a general rule, that the questions arising, under the Code, as to rogatio testium, last sickness and circumstances, are matters of fact for the jury to find, under the law, as given them in charge by the Court. And we unhesitatingly affirm this rule, under our law, to be Valid. But when the evidence agreed on could not change the verdict, legally — that is to say, when, under the facts and the law, the jury could not change the conclusion, we do not deem it necessary, on this account, to send the case back for adjudication.

And for these reasons, I concur in affirming the judgment of the Court below.