Werkheiser v. Werkheiser

The opinion of the Court was delivered by

Sergeant, J.

The 1st and 2d errors assigned are inapplicable to the case as now brought before us by writ of error from the Court of Common Pleas. The only mode of inquiring whether the issue was properly directed would be by appeal from the Register’s Court, who had full jurisdiction to direct an issue, and the Court of Common Pleas could not refuse to try it. We cannot inquire collaterally into the act of the Register’s Court in directing this issue. Nor was it important in the Common Pleas that the defendant resisted the making of the issue or refused to plead. The issue was made up by the Register’s Court in due form, and sent to the Common Pleas, and that was sufficient for them to proceed upon.

3. We think the 3d error fully sustained. The proper construction of this Act of Assembly was settled in Boyer v. Frick, (4 Watts & Serg. 357); and in Yarnall’s Will, (4 Rawle 46), where it was decided that the intent and object of the Legislature in passing the Act must be taken into view in interpreting the words “ last sickness,” and that the object of the Act was to enable those only to make nuncupative wills, who by reason of the extremity of last sickness were unable to make written ones. That such was the case here there was not a particle of evidence to prove. At the time of the last conversation deposed to, the testator was able to go down to the door, return up-stairs and converse; and he complained only , of weakness and not feeling well. Another witness thought he saw him, on the same day, walking in the street. On the next day a rupture of the lungs took place, and he died. The other conversations relate to a previous period of time. They all, it is true, go to show the intent of the decedent. But this is not enough. Every one who undertakes to make a testamentary disposition of his property, must conform to the law regulating such disposition; and if he does not take care to do so, the law cannot uphold it. Now the Act of Assembly requires that all wills shall be in writing, signed by the testator, and permits a verbal or nuncupative will only in extreme cases, where the party by the effect of disease is incapacitated from making a written will. To sanction a verbal will, where there is time to make a written one, would tend to the introduction of all the doubt, uncertainty, litigation, fraud and imposition which uniform experience has shown attend the allowance of verbal wills, in ordinary cases. It was error, therefore, in the court to leave to the jury without any evidence, to decide whether the alleged nuncupative will was made during the last sickness of the testator, when taking all the plaintiff’s case as presented in the depositions to be true, there was no evidence whatever to show that it was made in such an extremity of last sickness as the Act of Assembly requires : and it was the right of the defendant to have from the court, in answer tó his second point, an instruction to the jury to that effect.

4. The subject of this error does not seem material. For notwithstanding the court leave it to the jury to say whether two witnesses had agreed in their testimony, yet they afterwards very explicitly tell the jury that the legislative provision requires that a nuncupative will shall be made in the presence of two witnesses, who were present at the same time and called upon at the same time to attest the will, and that unless that were the case there was no will. The defendant cannot complain, therefore, of this part of the charge on the law, for it was all in his favour. His only ground of complaint would be that the court did not grant a new trial: but that is a part of the proceedings of the court below which is not inquirable into here on writ of error.

The 5th and 6th errors have been already substantially noticed.

7. The court were not bound to answer this point. It was irrelevant. It is no reason for not admitting a will to probate that its clauses and provisions may be obscure and uncertain. That is a matter for subsequent consideration in contests between the devisees and legatees, or with the heirs at law and next of kin. The plaintiff in error cannot complain of the court’s refusing to answer a point which they were bound to answer against him. Writs of error are only for the relief of those who are aggrieved by the acts or omissions of the court.

Judgment reversed, and a venire facias de novo awarded.