Parsons v. Parsons , 2 Me. 298 ( 1823 )

Mellen, C. J.

delivered the opinion of the Court at the ensuing term in Kennebec,

The third section of the statute of 1783, ch, 24, ['Slat. 1821, ch. 38.] provides that “ no nuncupative will shall be good, ££ whereby the estate thereby bequeathed shall exceed the ££ value of one hundred dollars, that is not proved by the oath of “ three witnesses, who were present at the making thereof; nor “ unless it be proved that the testator, at the time of pronouqc- “ ing the same, bid the persons present or some of them to bear e£ witness that such was his will, or to that effect.” The sectiap contains some other provisions which, in the present case, need not be. examined. — The only question which has been made is, whether any nuncupative will was made,«coming within the provisions of the act. The testator had no children; and of course his father was heir at law to his estate ; — or rather to one half of it: the estate being personal, one half of it by law belonged to the widow of the deceased. In general, nuncupative wills should be examined with, a very critical eye, especially when made by persons who were among friends and dependants, and in situations where a written will might easily have been made. In such circumstances it is the duty of the Court to see that the statute is strictly complied with, and the rights of heirs duly protected. It was well observed by the counsel for the appellant that the great object in view in multiplying checks in such cases, is to guard the interest of the the heirs at law from the dangers of fraud an,d imposition.

It is satisfactorily proved in the case before us that on one or two occasions prior to the evenjpg when the testator died, his father, the heir, stated that he had no wish to have his' son’s property, but desired it might be given to the wife ; and spoke of it as a matter which had been understood, arranged, and agreed upon by all concerned. Accordingly when the testator, a shor.t. time before his death, was asked to whpm he wished to give his property, — he immediately replied — r“to my wife; that is agreed upon —and when giving this answer, he looked up in his father’s face, by way of appealing to him for the correctness of the answer, as the witnesses construed it; upon which the father instantly said — “ yes, yes.” The testator then turned his eyes on his wife and said, “ you see my father acknowledges it.?? These are the circumstances relied on by the appellee to shew that, though the testator, did not bid, the witnesses, pr some of them who were present, to bear witness that such was Ifs w,ill¡, yet he did what wa.s “ to that’effect.'? And when we consider the previous understanding and agreement with the father as to the disposition pf his son’s property, and his own disavowal of a wish for any part of it; and further consider that this arrangement was alluded to by the son a short time before his death, not only jn plain language, but also in his silent appeal to the father, and the remark to his wife, founded on his fathers answer; when we further consider that all this took place in the presence of the three witnesses who have testified in the cause, and that the father and heir at law was also present and assenting, and compare these facts with the cases cited for the appellee, we are of opinion that the spirit, intent, and meaning of thé statute has been complied with in every essential particular; and accordingly

We affirm the decree' of .the' Judge of. Probate.