#### Portwood, *et al. vs*Hunter.

Appeal from the Jessamine Circuit.

Will Case.

*Case*120.

The ease stated,

To establish_ a nun cupative will, it should prooPoftSo witnesses, that it was the mtention of the dscewill, at the time *539specified, no set iorm of words is necessary to prove the purpose or terms of the will.

*538*Nun cupalive wills. Proof of wills.*

*June*26.

Chief Justice Ewing

delivered the opinion of the Court.

This is a controversy between the heirs of Ann Hunter deceased, about admitting her nun cupative will to record.

Two witnesses coneured in proving that Ann Hunter, at her residence and in her last sickness, declared in substance, in the presence and hearing of each of them, at different times on the same day, *both*of them being present on neither occasion, “that it was her will and desire that John Hunter should have the bed she had loaned him, and that the bed she was then lying on should go to Ann Mouring, the daughter of John Hunter, and the'balance of her property to her son, Moses Hunter.” Upon which proof the same was recorded In the County Court, as the nun cupative will of Ann Hunter, deceased. An appeal was taken to the Circuit Court, and the older of the County Court affirmed, from which judgment of affirmation, an appeal has been taken to this Court.

Our statute provides, (2 *Stat. Laws,*1540,) that “no nun cupative will shall be established, unless it be made in the time of the last sickness of the deceased, at his habitation, or, &e,” nor wtien the value exceeds ten pounds, unless it be *proved by two witnesses,*that the testator called on some person present to take notice or bear testimony that such is his will, or words of the like import.”

We so far concur with the opinion of this Court in the case of *Hann*vs *Bryant.*(Pr. *Dec.*318,) as to determine *,n ,*. . . . ,. that if it be proved by two wilnesses, (hat a distinct annunciation of an *intention to*make a will, at the time, and the *terms*thereof is made known, that it will suffice, though . , ? the witnesses were not called upon or required to take notice of such purpose or intention. The object of the *539statute was to require only that the purpose and intention of the testator, and terms of the will, should be clearly established by two witnesses at least. And if the-attention of the witnesses was so called to the subject by any form of words, as to enable them to prove such purpose and ¡nienlion, as.well as the terms of the will, clea.rly and unequivocally, the requisitions of the statute, embraced in the terms “or words of the like import,” are substantially complied with. The attention of the witnesses may be called to the subject and their recollec. tions fixed, as well by the terms of the will and language used in making it, as if they were expressly called on to take notice, and as justly remarked by this Court in the case referred to, it would seem to be absurd that the ignorance of the testatrix of this formality, should defeat her purpose and intention.

It is not indispensable that the publication of a nun cupative’ will should take place in presence of the *two witnesses*contemplated by *the*statute, at tho same time.

Nor do we think that by any fair interpretation of the statute, it is necessary that the publication of the will should be made in the presence and hearing of the *two witnesses,*at the *same time.*The statute only requires that it shall be *proved*by two witnesses, &c. and does not require that the two witnesses shall be present at the same time, or concur in proving the same identical publication.

The same statute requires'that-to make a valid will, as to the really, when the same is not. wholly written by the testator, it shall be attested by teoormore competent witnesses, *subscribing '*their names in his presence. From which it might be as well implied that the two witnesses should *attest*at the same *time,*as that the proof should be made by two witnesses of the publication of a nun cupative will, at one and the same time ; yet it has frequently been determined by this Court, that the attestation may be made at different times, provided it was made in the presence of the testator.

Nor can we perceive that gieater solemnity or deliberation in making a nun cupative will, would be secured, or more guards thrown around it against frauds and perjuries, by requiring the proof to be made by two witnesses of a single publication, than by allowing the proof to beraade by the two witnesses, of separate and distinct pub*540Jications of the same will and desire. Indeed it would rather seem ter indicate a more settled purpose and deliberation, when the annunciation is made of the same will and desire, at different times, in the last illness of the testator, than when the same is made only on one single occasion..

If the two'wit-"o^estabiish^a' nun- cupative will do not concur as to all the wiffcan onlybe faraasShthey' do sonourt

*Turner and Willis*for appellant; *Goodloe and Clark*for appellee..

It is true that it is proven by one of tbe witnesses, that ¿he testatrix, in addition to the bed, bequeathed spea cupboard, of little value, to her son John, and the other wi-t-ness does not recollect or state that such be- . ... quest was- made m his presence. As to this item ot property, as the two witnesses did not concur in proving sPecifi® bequest to John, it was properly omitted in the r-ecord of the will made by the County Court, and it may even' be questioned, from the proof, whether it should not be regarded as undisposed of estate, and excluded, in the record of the will, from the residuum left to her son Moses. But as it is obvious that the testatrix did not intend to-die intestate, as to a-ny part of her estate, we are disposed to permit the record, as made-by tbe County Court, to stand, though it may have the effect to carry the cupboard-in the residuum-, to her son Moses.

I-t is, therefore, the opinion of this Court, that the judgment of the Circuit Court affirming the order of the County Court, be affirmed.