#### *Phœbe & Others v. Boggess & Another.

September, 1844,

Lewisburg.

[42 Am. Dec. 534.]

(Absent Cabell, P., and Brooke, J.)

1. Nuncupative Wills—Emancipation of Slaves by.*— Under the statute 1 Rev. Code, p. 433, § 53,† slaves may be emancipated by a nuncupative will.

2. Same—What Constitutes‡—Case at Bar.—B. being at his own house, and *in extremis,*but of sound and disposing mind and memory, requests R. to write his will. R. seated at a table by the bed of B. writes the will from his dictation ; and after it is finished, it is read to B. and approved by him. By this will he emancipates his slaves, and disposes of his whole estate, real and personal. After the paper Is read, B. attempts to sign it. but desists, saying he cannot see ; and then requests R. to sign it for him. Whilst R. is in the act of signing the paper, B. swoons, and dies about two hours after, without any farther attempt to execute his will. There are three witnesses to these facts ; all of whom heard the bequests as they were dictated by B. to R. Held, this is a good nuncupative will. Stanard dissenting.

At the quarterly term of the county court of Marion, for March 1844, Phoebe, and six others, who had been the slaves of Richard Boggess, deceased, offered for probat a paper writing, as containing his nuncupative will. By this paper, Boggess emancipated these slaves; and directed all the rest of his estate, both real and personal, to be sold; and after the payment of his debts, that the balance of the proceeds of the sale should be invested in land in the western part of Pennsylvania, for their benefit.

The admission of this paper writing *to probat was resisted by Caleb, and Albertus Boggess, heirs at law, and distributees of Richard.

It appeared from the evidence given on the trial of the case before the county court, that Richard Boggess who was an unmarried man, owned the negro woman Phoebe, who had been his housekeeper for many years, and her children, six in number. On the day of his death, he requested Mr. Thomas S. Reeder, who with several other persons his neighbours, was present, to write his will: and Reeder, sitting at a table by his bed, wrote it from his dictation. After the will was written and read to Boggess, and approved by him, he rose and sat on the side of the bed, and attempted to sign it; but desisted, saying he could not see; and then requested Reeder to sign it for him. Reeder had taken the pen, and was in the act of writing the name of Boggess, when Boggess swooned. The persons present were afterwards requested by Reeder to sign their names with him, as witnesses to the paper, which they did. The subscribing witnesses were Joshua E. Hawkins, Henderson S. Roby, Thomas S. Reeder, and William Wilkins. The first three were examined on the trial. They all heard the testator, as he dictated the bequests of the will to the scrivener. They heard the will read to him, and approved by him; and they saw him, when he made the effort to sign the paper; and *62they heard his request to Reeder to sign it for him. There could be no doubt, that Boggess intended the paper as a testamentary disposition of his property: that he then expected to die; and in fact did die within two or three hours from the time he swooned.

This paper was offered for probat in the superior court of law and chancery for the county of Marion, as the written will of Richard Boggess, and rejected. All the subscribing witnesses, including Wilkins, were examined on that trial. When the case came on before the county court, it appeared that a subpoena had been issued *for Wilkins, but it had not been served; and that he was not then an inhabitant of the state.

The county court admitted the paper to probat, as containing the nuncupative will •of Richard Boggess; and the contestants appealed to the superior court of law and chancery for the county of Marion, where the sentence of the county court was reversed ; and then the paupers appealed to this court.

Grattan assigned counsel for the paupers by the court.

The main questions in this cause is, whether under the act of assembly of Virginia, slaves may be emancipated by a nuncupative will. Preliminary to this question, however, there are two others.

First, whether the slaves emancipated by the will, may propound it for prdbat. On this question, it is sufficient to refer to Redford v. Peggy, 6 Rand. 316, and Manns v. Givens, 7 Leigh 689.

The second question is, whether this is a good nuncupative will. And on this point the court is referred to the case of Mason v. Dunman, 1 Munf. 456.

We come now to the main question in the cause. May slaves be emancipated in Virginia by a nuncupative will? This question depends upon the construction which may be given ' to the statute, 1 Rev. Code, p. 433, *§*53.

This statute has not yet received a construction from this court, though it is said in Winn v. Bob, 3 Leigh 140, that two of the judges who sat in that case were then prepared to decide it, but upon the suggestion of the late judge Carr, it was postponed until it could be brought before a full court.

It is obvious on a reading of the statute, that it provides for the emancipation of slaves by two modes: first, by last will and testament; and second, by “other instrument;” and the question upon, the construction of the statute, is, whether the provisions, as to the mode of ’’executing the instrument of emancipation found therein, refers, and is applicable to both modes; or is confined to the last. In considering this question, it is to be remarked, that unless the legislature intended to prescribe other formalities in the execution of a last will and testament, whereby slaves are emancipated, than are necessary in other wills, then no provision for the mode of executing and recording the last wills and testaments authorized by this act, was necessary. The law as it then was, had provided already for these things; and if the act had stopped with the word testament, there could have been no doubt that nuncupative wills were included; and there could be just as little doubt, as to the mode of their execution and probat. But the law as it then was, had prescribed no mode for the execution and record of the “other instrument” by which this act authorized the emancipation of slaves; and therefore it was necessary to prescribe them. We see then in the state of the law at the time of enacting this statute, ample reason for its provisions prescribing the mode of executing, and the place of recording the instrument; and we^ cannot, therefore, presume that there was the purpose to change the law in these respects, in relation to iast wills and testaments.

But, there is not only no necessity for presuming an intention to change the law in relation to last wills and testaments; but the provisions of the statute, as to executing and recording the instrument of emancipation, are as to some of them, from their nature inapplicable to wills; and others, this court has decided to be unnecessary. Thus, the statute provides that the person executing the instrument of emancipation, may acknowledge it before the county court; a provision, which can have no reference to the execution of wills. The statute also directs that the instrument shall be recorded in the county or corporation court; and this court has frequent^ decided that deeds of emancipation must be there recorded; *Givens v. Manns, 6 Munf. 191; Lewis v. Fullerton, 1 Rand. 15; Moses v. Denegree, 6 Rand. 561; but that has never been held to be necessary in the case of wills. And in the case of Redford v. Peggy, supra, and Dunn v. Amey, 1 Leigh 465, this court held that sealing, and the attestation of witnesses were not necessary to the validity of a will, emancipating slaves. It would be difficult to find any justification for the court, in dispensing with these various provisions c?f the statute, as to the mode of executing, and the place of recording the instrument of emancipation, if these provisions applied to wills; and the decisions can only be- accounted for, or sustained, upon the ground, that the construction of the statute for which we contend is correct.

Harrison and C. Johnson for the appellees.

We are now in a court of probat; and as nuncupative wills cannot be contested by a bill in equity, this court will be more rigid in the enquiry whether this is a valid will. If it is not valid for the emancipation of these slaves, then they can have no interest in having it admitted to probat. We admit that paupers may propound a will which is sufficient to emancipate them; but it is only in such a case that they have this right.

Is this a good nuncupative will? The first remark to be made is, that nuncupative *63wills are not favourites with courts of pro-bat : that these courts always view such wills with suspicion; and lean against them. Bennett v. Jackson, 2 Phil. Rep. 190; Parsons v. Miller, Id. 194; 4 Rawles’ Rep. 46; 20 John. Rep. 502. The facility with which frauds may be perpetrated by means of such wills, requires that they should be strictly guarded; and if there is any reason to doubt whether this is the voluntary will of Boggess, or that of the friends around him, the court is bound to pronounce against it.

*The first objection to be urged in this case is, that the evidence is defective, because all the subscribing witnesses were not before the court. The law requires all the witnesses to be examined; though it might not have been necessary that so many should have attested the will.

It is most manifest from the testimony in this cause, that Boggess intended to make a written will, according to the statute of wills: that he exerted himself to the last moment, to make such a will: that such an one was prepared by his direction; and that he died in the effort to execute it. It is equally manifest that he intended and tried to dispose of his whole estate; and that he has failed: and if the court takes a part of his will, and records that, the intention of the testator as to the residue, is disappointed. The will, if admitted to record, can only operate upon the personalty ; not the realty: can this court then, undertake to say that the appointment of the executor, and the emancipation of his slaves, is the nuncupative will of Boggess? Did he mean absolutely, to give this woman and her six children their freedom ; without making any provision for them? Can this court say he would. have emancipated them if he knew that such was to be their condition? He has not attempted to do this; and the court cannot pick out a small part of the will, and establish it; so as to effect that which the testator has shewn no intention to do. In Rochelle v. Rochelle, 10 Leigh 125, the court held that notes for a will could not be received, where it was clear that the notes made a different will from that which the testator intended; and judge Tucker relied upon the fact that he intended to dispose of both real and personal estate.

It is again most manifest that Boggess did not mean to make a nuncupative will. It is true, that in Mason v. Dunman the court admitted the notes to probat, as a nuncupative will, which appear to have been intended *as a written -will: but that is but one decision; and was made bjT a court of three judges; and we submit that the case ought to be reconsidered. Our statute in relation to nuncupative wills is very explicit; and prescribes the forms to be employed, in order to its validity. It shall be made in the last sickness; and the testator is to call upon the witnesses to attend; and he must declare to them his will. Surely he must intend then to make a nuncupative will, before these requisites of the statute can be complied with.

As the law was at the time of the decision of Mason v. Dunman, this paper would have been a good written will; but by the act of 1834-5, wills of personalty, and realty, are put upon the same footing. It is clear that this is not now a good written will; and yet it is proposed to make that which up to 1834-5, would have been a good written will, now a good verbal will. We submit this consequence should not be allowed.

But if this is a good nuncupative will, is it effective for the emancipation of slaves? It is true, this question has not been decided by this court; but in the case of Winn v. Bob, 3 Leigh 140, two out of the three judges were prepared to decide that slaves could not be emancipated by a nuncupative will: and it was well said by judge Brooke in the case of Thrift v. Hanna, 2 Leigh 319, that it is the highest act of sovereignty to emancipate a slave.

The right to emancipate slaves is derived from the statute. It owes it existence to the act of 1782, 11 Hen. Stat. at Large 39; and it must therefore be exercised in the modes and to the extent only, which is authorized by the statute. What are the modes? They are obviously two; first, by last will and testament; and second, by “other instruments in writing. ” It is not important to enquire whether the provisions of the act as to the mode of executing, attesting, and recording the instrument of emancipation, are intended to apply to *the mode of emancipation by last will and testament: and it may be admitted that if the words “last will and testament” were not restricted by the statute, they would embrace nuncupative wills, as well as wills written: but we insist that the statute itself restricts these words to written wills. The second mode of emancipation is prescribed in the words “other instrument in writing.” When then the act uses the words other writing, in defining the second mode of emancipation, it could only mean that the first mode must also be in writing; or the second would not be an other writing. It is a principle in the construction of statutes, that every word shall have a meaning, if it be possible to give it. This word other is a plain, significant word; and the statute must be so construed, as to give it its proper, and legitimate force; which' can only be done, by restricting the word “will,” toa will in writing.

We will be aided in coming to the correct construction of this statute, by looking to the provision of the 56th section. That requires the clerk to give to the freedman a copy of the instrument of emancipation. But what is the clerk to give to the person emancipated by á nuncupative will? That is not in writing. The counsel on the other side say the provision as to recording is not applicable to wills. How then is the clerk to perform the duty enjoined upon him; and for the failure to perform which, he is subjected to heavy penalties.

*64Grattan in reply. I have very little more to say upon the question whether slaves may be emancipated by a nuncupative will. It is said that the word “other,” used in reference to the second mode of emancipation, restricts these words, “last will and testament,” to a will in writing; as the second mode could not be by other writing, unless the first was by writing.

The argument is founded, and wholly depends upon the fallacy, that the writing is the factum in the second *mode of emancipation authorized by the statute. Two modes are authorized; the first, by last will and testament. The second is not by an “other writing,” but by an “other instrument.” The instrument is the factum; and the words “in writing” are as much a part of the description of the instrument, as is the provision for the sealing and attestation. To give even plausibility to their argument, gentlemen are obliged to erase the important words “instrument in;” thus violating their own ruie of construction. But restore these words; and you have the word instrument, which from its nature imports a fact; whilst the prefix “in” takes from its adjunct “writing.” all the properties of a substantive ; and makes it merely descriptive of the instrument intended by the statute.

But if this word “other” refers to “writing,” as well as to “instrument,” it cannot have the effect insisted on by the counsel on the other side; because, in fact, a nuncupative will is an instrument in writing. It is sometimes reduced to writing in the lifetime of the testator, 2 Swinb. 645, in note. Our statute contemplates its being reduced to writing, 1 Rev. Code 377; and it is not a will until reduced to writing, and admitted.to probat. Verhorn v. Brewine, 1 Chan. Cas. 192. And this fact is an answer to the difficulties suggested by the counsel on the other side, in the way of the performance of his duty by the clerk.

But we are told, that the right to emancipate slaves is a right derived from the statute; and therefore, limited by the statute ; and that it is the exertion of the highest act of sovereignty to convert a slave into a freeman.

We admit that the statute is the foundation of the authority to emancipate slaves. But the statute is the foundation of this authority, not because it originates, but because it limits the rights of the master. Slaves were introduced into Virginia in 1619-20; and until *1691, they were emancipated at the pleasure of the owner. 1 R. C. 434, Leigh’s note. Subsequent legislation limited a pre-existing right, but conferred none: and with all due submission, it would seem to me, that the high act of sovereignty was exerted in restricting the right of the master to emancipate his slave; and not in authorizing him to exercise that right under limitations and conditions.

The other question in the cause is whether this is a good nuncupative will. The counsel for the appellees have cited authorities to shew the leaning of the courts both of England and this country, against nuncupative wills. I shall not examine these cases, though it is obvious to remark that one reason why the courts, especially of England, are prejudiced against nuncupative wills is, not that they afford greater scope to fraud, but that they are strictly guarded by statute; and therefore, do not admit of that judicial discretion which has been so freely exercised in relation to written wills.

It is objected that the evidence before the county court was insufficient, because Wilkins, one of the subscribing witnesses to the paper, was not examined: and it is stated to be the rule, that however numerous the subscribing witnesses to a will, they must all be examined. This is a nuncupative will; and therefore, properly speaking, there can be no subscribing witnesses; and the rule, if correctly stated, cannot apply to such a case. But if it does apply to such a case, there must be an exception to the rule where all the means in the power of the propounders have been emploj'ed without success to procure the attendance of the witness. On the trial of the cause in the county court the absence of the witness was satisfactorily accounted for to the court; no objection on that ground was there made by the contestants, and I submit it is too late to make it now. But the rule, as laid down by the counsel for the appellees, has never been recognized, or acted on in our courts, so *far as I have examined. See Nalle v. Fenwick, 4 Rand. 585; Smith v. Jones, 6 Rand. 33; Chase v. Lincoln, 3 Mass. Rep. 236; Sears v. Dillingham, 12 Id. 358; Brown v. Wood, 17 Id. 68; and the case of Mynn v. Robinson, 1 Hagg. Rep. 68, is the only case I have found, which gives any countenance to it.

I shall not stop to .enquire whether this is really the will of Richard Boggess, (no man who reads the record can have any doubt on that point,) but will come at once to the enquiry whether this will was so declared as to make it a good nuncupative will. The record shews that the wilt was made at the dwelling house of the testator, when he was in extremis; that he was of sound and disposing mind and memory; that each provision of the will was dictated by him; and when the whole was written down, it was read to him, and approved; and that three witnesses were present, and concur entirely as to what he said. The only other requirement of the statute is the rogatio testium; and if this is satisfied, the will is clearly well proved as a nuncupative will.

It will be seen upon reading the statute, that it does not require that the testator shall call upon the witnesses to take notice that he is about to make his will. The provision is in the alternative, and any words of like import will be sufficient. 1 Rev. Code, ch. 104, § 7. The object to be attained by the rogatio testium, is two-fold; first, to shew the purpose of the testator to *65make his will; and second, to call the attention of the witnesses to this purpose, that they may hear and understand what he declares. The evidence in this cause, leaves not a doubt that this object of the law has been attained in this case; and no calling upon the witnesses, however formally done, could have indicated more certainly the intention of the testator to make his will; or more thoroughly attracted the attention of the witnesses; *or enabled them to state the provisions of the will with more certainty.

But it is objected that Boggess intended to make a written will. His primary intention was to make a will. The form of the will was but a secondary matter: and this court is familiar with the principle that if an instrument cannot operate in one way, it shall in another, ut res magis valeat quam pereat. This is a principle especially familiar in the case of wills. Thus, in the case of Masterman v. Maberley, 4 Eccl. Rep. 103, a testamentary paper and three bonds, all of them unexecuted, were set up as a will. So in Thorold v. Thorold, 1 Eccl. Rep. 1, a deed of gift was declared for as a will. And in 1 Wms. on Ex’ors 54-5, many cases are referred to, in which almost every species of instrument has been established as a will: among those mentioned will be found promissory notes, checks on bankers, and assignments. Indeed it is not at all necessary that the testator should think he was making a will; Bartholomew v. Henley, 1 Eccl. Rep. 404; but wherever he intends to give an interest to take effect at his death, if it cannot operate as he intended it, the courts will accomplish his intention, by setting up the paper as his will.

The cases in which a will intended to pass lands, but failing in that from some informality in its execution, has been established as a will of personalty, are apposite to the point now under consideration. There, the testator intends what he does not accomplish; and yet the court gives effect to the testator’s intention as far as possible; and establishes some of the bequests of the testator, whilst others fail from the insufficiency of the will. The cases of Glascock v. Smithers, 1 Call 414; Cogbill v. Cogbill, 2 H. & M. 467; West v. Wests, 3 Rand. 373, are cases of that kind; and the case of Rochelle v. Rochelle, cited by the counsel on the other side, fully recognizes this doctrine.

*But it is again objected, that prior to the act of 1834-5 this paper would have been a good written will.

It may be conceded, that according to the decisions of the ecclesiastical courts of England, this paper would, prior to 1834-5, have been a good written will. But Mason v. Dunman was, according to these decisions, á good written will at the time it was established; as will be seen by a reference to the cases. See Wood v. Wood, 1 Eccl. Rep. 101, and the cases there referred to, Langmead v. Bewis, Id. 274, Sikes v. Snaith, Id. 276, Lewis v. Lewis, Id. 370, and A. Bathgate’s case, 3 Id. 28. Again, the more formal the writing the safer it is from frauds: whilst however formal it may be all the requisitions of the statute must be complied with, before it can be established as a nuncupative will. Now it is to be remembered that the act of 1834-5 does not abolish nuncupative wills; but recognizes and preserves them in express terms: and surely, if they are to exist at all, they are more secure against all misapprehension and fraud, in a case like the present, than they can be, when they exist in the recollection of witnesses, whose memories may be treacherous, or who may be treacherous themselves.

Bastly, it is said that this will not being good as to the real estate, the bequests of that cannot be considered any part of the will; and you cannot pick out a particular bequest from the rest, and establish that as the will.

I have only to say, that what is the will, is one thing; and what is its operation, is another thing. The bequests here are divisible, and are not given to an heir at law, or next of kin. In this it is unlike Rochelle v. Rochelle in the very particulars upon which that decision was founded: whilst that case, as well as the others before cited of Glascock v. Smithers, &c. fully establish the proposition, that a will may be valid though some of its bequests fail.

*In conclusion, I have only to refer again to Mason v., Dunman, as sustaining every proposition for which I contend on this point: a case, decided unanimously by all the judges then constituting the court of appeals; and sustained by what is said in 8 Bacon’s Abr. title Wills, E. p. 479, and in my judgment resting upon sound principles of law.

*

 Nuncupative Wills— Emancipation of Slaves by.—In Winn v. Bob, 3 Leigh 140, 23 Am. Dec. 258. it was left a *aware*whether slaves could be emancipated by a nuncupative will under the provisions of the statute, 1 Rev. Code, ch. 111, sec. 53. But Brooke, J., and Tucker, P„ intimated that they thought slaves could not be emancipated by such a will.

Wills—Probate—Slave.—It is well settled that emancipated slaves may propound for probate the deed or will conferring their right to freedom. For this proposition the principal case was cited in Reid v. Blackstone, 14 Gratt. 366 ; *foot-note*to Mercer v. Kelso, 4 Gratt. 106.

†

That statute says: It shall be lawful for any person, by his or her last will and testament, or by any other instrument in writing, under his or her hand and seal, attested and proved in the county or corporation court, by two witnesses, or acknowledged by the party in the court of the county where he or she resides, to emancipate and set free his or her slaves, or any of them, who shall thereupon be entirely and fully discharged from the performance of any contract entered into during servitude, and enjoy as full freedom as if they had been particularly named and freed by this act.

‡

Nuncupative Wiils—What Constitutes.—As to what constitutes a good nuncupative will, the principal case is distinguished in Reese v. Hawthorn. 10 Gratt. 550. See also, on this subject, Mason v. Dunman, 1 Munf. 456, where it was held that certain notes taken by th e bedside of a dying man were a good nuncupative will.

ALLEN, E,

delivered the opinion of the court.

The court is of opinion, that the statute authorizes two modes of emancipation ; one, by last will and testament; the other, by an instrument of writing executed, attested, proved or acknowledged in the mode prescribed. That the last will and testament intended, is such last will and testament, so executed and proved, as to constitute by the law a valid testamentary disposition of property, of the kind referred to in it. That the mode in which a valid disposition might be made by last will and testament, had been previously regulated; and it was not the purpose of the statute, by attaching new qualifications to a will emancipating slaves, to distinguish between wills conferring emancipation, and wills disposing of slave property otherwise: and that thé directions of the statute contained in the clause under consideration, must refer to, and be restricted to the other instrument of writing by which the owner was authorized to emancipate slaves.

The court is further of opinion, that the declarations of the decedent, as proved I and reduced to writing, did constitute a *66good nuncupative will; and as such were properly admitted to probat by the county court as the nuncupative will of Richard Boggess, deceased: and that therefore the sentence and order of the county court should have been affirmed. Therefore it is considered that the judgment of the circuit court reversing the sentence or order of the county court admitting said nuncupative will to is and is ¡ - | ; - ¡ ; ; , ¡ reversed *with costs: and this court ; proceeding to give such judgment as the circuit superior court should have given, affirms the sentence of the county court. j

STANARD, J.,

dissented from the opinion of the court, on.the point, whether this was a good nuncupative will. ¡