Mellor v. Smyth , 220 Pa. 169 ( 1908 )

Opinion by

Mr. Justice Mestrezat,

In this state, every will is required by statute to be in 'writing, and unless the person making it shall be prevented by the extremity of his last sickness, must be signed by him at the end thereof or by some person in his presence and by his express direction. It is provided, however, that personal estate may be bequeathed by a nuncupative will under certain restrictions, one of which is that it be made during the last sickness of the testator. Under these statutory requirements, therefore, a nuncupative will is permissible only when it is made when the testator is in extremis or in the extremity of his last sickness. In construing the language of our statute, we have adopted the views of Chancellor Kent in the leading American case of Prince v. Hazleton, 20 Johns. 502, in construing a similar statute, in which he holds that a nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will: Priscilla Yarnall’s Will, 4 Rawle, 46 ; Boyer v. Frick, 4 W. & S. 357; Werkheiser v. Werkheiser, 6 W. & S. 184. If, therefore, a nuncupative will is presented for probate, one of the essential requisites of its validity which must be made to appear is that it was made in the last sickness of the testator and that by reason of the near approach of death there was neither time nor opportunity for the testator to execute a written will. The provisions of the statute are mandatory that a will must be in writing and signed by the testator, unless he is prevented from so doing by the immediate apprehension of death and there is neither time nor opportunity to make a written testament. There must be an urgent necessity or an emergency to justify a nuncupation.

In the case at bar, the proponents produced to the register a nuncupative will alleged to have been made by Margaret Bippus on Saturday afternoon, December 9, 1905. The testatrix died about two o’clock on the following Monday morning. The register refused probate of the will, and an appeal was taken to the orphans’ court which awarded an issue devisavitvel non to determine “ whether the said Margaret, known as Mary Margaret Bippus, was in extremis ’ at the time of the making and execution of the said will on the ninth of December, a. d. 1905.” A precept was sent bjr the orphans’ court to the court of common pleas, Ho. 4, of Philadelphia county, commanding that court to form an issue to try the question. An issue was framed in which .the beneficiary and executrix named in the will was plaintiff and the administrator of the estate was named as defendant. The trial of the issue resulted in a verdict and.judgment for the defendant. The plaintiff has taken this appeal.

The first specification alleges error in admitting Dr. Levis to testify to the physical condition of the decedent on Sunday, the day after the alleged will was made. There is manifestly, however, no merit in this assignment. The question at issue before the jury was whether the decedent was in extremis at the time she made the alleged will, and that included her physical condition thereafter until her death in the early morning of the following Monday. Thirty-four hours elapsed from the time the decedent made the declaration disposing of her property until she died, the declarations having been made about four o’clock on Saturday afternoon and the death having occurred about two o’clock on Monday morning. The testimony of the proponent tended to show that when the declarations were made that she was so feeble that she was incapable of doing any physical act, and it is the contention of the proponents of the will that this debility or feebleness continued until death. Unless such debility continued, thereby giving no time or opportunity to execute a written will, nuncupation cannot be permitted, and the alleged will of the decedent is invalid and of no effect. If, as contended by the appellee, the decedent was fully capable of executing a written will on Sunday, and had the opportunity of so doing, her enfeebled condition, if it existed on Saturday, would not be an emergency or necessity which would justify the making of a nuncupative will. The testimony offered by the appellee, the subject of this assignment, tended to show not only that the decedent’s physical condition on Sunday was such that she could have executed a written will, but also that there was no such debility or feebleness at the time she nuncupated as to prevent her from conforming to the requirements of the provisions of the statute by executing a written will. The first assignment of error is not sustained.

In the opinion of the orphans’ court, directing the issue to the common pleas, the court held: “ That the testamentary capacity of the testatrix, the animus testandi, and the substantial identity of the declarations as contained in the. paper propounded for probate with those made by the testatrix were sufficiently established, and that the only point upon which a reasonable doubt could be entertained is whether the testatrix, at the execution of the will, was in extremis.” This was the single question before the jury, and it was a question of fact. The jury were not required to determine tbe validity of the nuncupative will, but to ascertain whether the decedent in nuncupating was in extremis. They had nothing to do with the policy of the law which declares that a nuncupative will is never favored, but simply tolerated. If the testimony produced on the trial warranted the jury in finding that the decedent was in extremis at the time she executed the will, a verdict should have been rendered for the appellant. In determining this question they should not have been influenced by any considerations of policy which required a strict compliance with the essential requisites of a valid nuncupation. A clear and adequate explanation of the meaning in extremis should have been given in the charge, and the attention of the jury should have been directed to the testimony tending to establish the contention of the plaintiff and defendant. This would have left the issue to the determination of the jury with their minds unencumbered and uninfluenced by any extraneous matter.

We are inclined to think that the trend of the charge had a tendency to lead the jury from the consideration of the one question submitted for their determination. We refer especially to that part of the charge made the subject of the third assignment of error. The dangers arising from nuncupative wills are no doubt as pointed out by the learned judge, but, as observed above, they should have no weight or bearing with the jury in determining the single question of fact presented for their consideration. Whether oral wills are “ not regarded with much favor by the courts because of the great danger of putting words into the mouths of the people who have property by interested and designing people,” or whether “ it is very easy to get up a will for a rich man which would be favorable to people towards whom he intended to show no favor” was wholly beyond and outside of the issue which the jury were sworn to try. The effect of such language and its repetition, or its equivalent, in the charge would necessarily be to influence the minds of the jury against the proponents of the will, ánd require a higher or greater degree of proof to sustain the will than the law demands. Such matters were wholly irrelevant to the issue being tried, and the admonition they contained was not necessary to guide the jury in determining the physical condition of the decedent at the time she made the declaration contained in the paper alleged to be her will. Such admonition should ever be present with the court in determining the validity of a nuncupative will, but they should not be used in a charge to a jury which were sworn to determine the single fact of the physical condition of the testator.

The court very.properly called attention to the interest of the Mellors in the issue before the jury. The jury in determining the weight of their testimony should have taken their interest into consideration. ¥e are not prepared to say, however, that the suggestion of the learned counsel for the proponents is wholly without merit wherein it is said that “ the court hit too hard and kept it up too long.” The act of assembly made the legatee and her husband both competent witnesses, and while it was proper for the court in its charge to allude, to the fact of their interest in the result of the trial, as affecting their credibility, it should have done so in such manner as to leave the credibility of the witnesses entirely to the jury. The reference to the interest of the legatee and her husband without any allusion to the interest of Dr. Levis and the suggestion that Dr. Levis was a wholly disinterested witness would necessarily discredit the testimony of Mr. and Mrs. Mellor. No reference was made in the charge to the opportunities of the attorney and the physician for judging of the condition of the decedent on Saturday nor the fact of the legatee’s refusal to pay the fee which the doctor demanded as an expert witness. These matters are referred to as of some consequence in the opinion of the orphans’ court in awarding the issue. Of course, it cannot be expected that a trial judge will advert to all such details unless his attention is called .to the matter by counsel, but in a case of this character and where there are but very, few witnesses to the material point in the case, it is not well to omit to call the jury’s attention to the interest of any witness in the case. "We merely direct attention to this matter in view of the fact that the case goes back for another trial.

It seems by a reference to the notes of the testimony, that there is some ground for the error alleged in the fourth assignment. Referring to the testimony it seems to show that the decedent was not taken from her bed on Saturday noon as stated by the court; it appears to have been on Sunday afternoon.

While the remarks of the court, the subject of the third assignment of error, were not made by the learned trial judge with the intention of unduly influencing the jury, yet we think they may have had that effect. They were not pertinent to the issue being tried and we cannot say that they did not mislead the jury. Such being the fact, we are required to reverse the judgment and direct the case be tried again.

The judgment is reversed with a venire facias de novo.