#### JOHN C. RANKIN & AL. *vs.*THANKFUL RANKIN & AL.

In a probate of nuncupative wills every requisition of the Statute ought to be faithfully observed; and especially the probate will not be good if the next of kin are not cited.

Appeal from the Superior Court of Law of Guilford County, at the Spring Term, 1848, his Honor Judge Pearson presiding.

This is an application to call in the probate of a- nun-cupative will of William Rankin, who died in September 1829. leaving a widow, who is one of the defendants, and two daughters, who were infants. It was on the 22nd of September, reduced to writing in this form : “The nun-cupative will of William Rankin, deceased. It was his *157will and request that the old plantation be sold and the old wagon and still and all the stock that his wife could spare, to pay his debts ; and the remainder of the property to be at his wife’s disposal; and for her to get one of his or her friends to assist her, or whom she pleases. He mentioned that he was not able to do''it himself. William Rankin related these words on the 7th day of September, 1829, and died on the 17th of the same month. Teste— Samuel E. Donnell, David Wilson.”

At November Term of the County Court of 1829, probate was taken thereof in the following form : “This nuncupative will of William Rankin, deceased, was duly proved in open Court by the oaths of Samuel Donnell and David Wilson, the subscribing witnesses thereto ; and it is ordered to be recorded.” There was no citation to the children, nor any guardian appointed to defend their interests. At the same time administration with the will annexed was, at the request of the widow, granted to her and John Rankin, a brother of the deceased; and after the payment of the debts, Mrs. Rankin continued in possession of the estate, consisting of eight slaves, stock, household furniture, and other things, claiming them as her own under her husband’s will. Her daughters likewise lived with her until their marriages, 'which took place while they were respectively under age ; that is to say, that of one of them, Hannah, to John C. Rankin, in December, 1833, and that of the other, Nancy, to Thomas Rankin, in December. 1840. Hannah had four children and died in May 1845 ; and Nancy had two children and died in Ajjril 1844. After the respective marriages, Mrs. Rankin gave to each of her daughters some slaves by parol and put them into the possession of their husbands. But after the deaths of the daughters differences took place *between*that lady and her sons-in law, and she brought actions of detinue against them and recovered the negroes. They then administered on the estates of *158their respective wives, and instituted the present proceeding in August, 1846.

The allegation impeaches the probate of the will, upon the ground, that there was no process to call in the children to contest it, nor were they otherwise parties to the proceeding or privy thereto, and also because it does not appear in the probate, that'the will was made under such circumstances as the law requires to make it valid, and» particularly, that the witnesses were specially required to bear witness thereto by the testator himself. Furthermore, the allegation impeaches the will itself, because the witnesses were not in fact thus specially required to bear witness to the will by the testator.

Mrs. Rankin and John Rankin put in a responsive allegation, and therein admit, that the probate took place without process sued out to bring in the children or their being otherwise actually before the Court. But Mrs. Rankin states in fact the daughter Hannah, then 14 years old, was present when the will was made and knew its provisions ; and that she and Nancy, then 7 or 8 years old, knew, when she went to Court to have the will proved, and were immediately informed *that it had*been proved, and that they both acquiesced in it during their lives, and, particularly that Hannah did, notwithstanding repeated efforts of her husband to render her dissatisfied, and notwithstanding the peace of her life was disturbed by his importunities to her to fall out with her mother and set up a claim to the property given to her by the will. Mrs. Rankin states, that the will was made by her husband at his own house, in his last sickness, and in the presence of herself, her daughter Hannah, David Wilson, Samuel E. Donnell, and the wife of Donnell; and that the testator called all of them *to his bed side*and said, “I want you all to take notice of what 1 say, and bear witness that this is my will.” And both she and John Rankin state, that the witnesses Donnell and Wilson, both, *159deposed to the Court, when the will was offered for probate, that the deceased did thus call on them and the other persons to take notice as above set forth. Mrs. Rankin furthermore states, that the present applicants after their intermarriages with her daughters saw a copy of the will and probate frequently at her house, and were fully informed in respect thereof; and that, although they repeatedly applied to her, she constantly refused to make them conveyances for any of the negroes, and that they submitted to such refusals during the lives of their wives and until December 1S45 : and that then they again applied to her for a title to the negroes, when she informed them, that she would not make any, but intended to let them enjoy the slaves during their lives, and then to give them to her grand-children — whereupon they threatened to have the will set aside, and she brought suit for the negroes.

In support of the allegation, David Wilson, one of the subscribing witnesses, has been examined, and he deposes that the will was made in the presence of Donnell, himself, his wife, and Mrs. Rankin, and was correctly reduced to writing ; but that he has no recollection, that either he or *Donnell*or any other *person*was called on by the testator to remember or bear witness to what he said; and that he feels confident, that they were not thus called on. because he is sure, that he put into writing all the testator did say; and that neither he nor Donnell was examined or made any statement to the Court on that point.

On the contrary John Rankin deposes, that, being called on by his sister-in-law to assist her in the management of the estate, he was led to enquire into the circumstances under which the will was made, and that he was informed by Wilson and Donnell, that they were called on by William Rankin to bear witness that, that was his will, which was by them afterwards reduced to writing : That *160he emplqyed respectable counsel to have the will proved properly ; and that he was present in Court upon the occasion and both Donnell and Wilson then swore that the testator disposed of his property in the manner in which they wrote the will down and that they were both called on to bear witness to it. tie states, further, that Donnell is dead.

Both of these witnesses are proved, by several respectable persons, to have very good characters ; but most of the witnesses say, that Mr. Rankin was so deaf in 1829, and ever since, that his hearing was very indistinct.

The cause was brought by appeal to the Superior Court, and there the probate was set aside, and an appeal then taken to this Court.

*Kerr*and *Iredell,*for the plaintiffs.

*Morehead,*for the defendants.

Ruffin, C. J.

Nuncupative wills were found to give rise to so many frauds and perjuries, that it was necessary to guard them by many requisites in respect to their execution and their probate. *Cole*v. *Woodnunt, 4*Ves. 196, note, 3 Bl. Com. 501. To render the protection safe against those evils, the Court ought faithfully to observe every one of the provisions of the Statute. As one of them, and not the least important, the Act prohibís probate of a nuncupative will “until process has been first issued to call in the widow, or next of kin, or both, if conveniently to be found, to contest the same if they think proper,” in order to prevent surprise on those interested in the estate. It was not intended, that there should be a probate of such a will in common *form,*when one in solemn form could be had, nor that the privity of the next of kin should be inferred from supposed opportunities of knowledge, or established by parol proof, as in some other instances it may be. Fer, in the former case, there might *161be surprise ; and in the latter perjury ; and the danger of each was so obvious, that the Legislature deemed it politic to exclude the opportunities of committing them. Here the next of kin might have been conveniently found, being within the jurisdiction, and, indeed, resident with the party offering the will. It is true, they were infants, and, if brought in by process, could not have conducted the enquiries on which their rights depended. But that did not excuse the other party from bringing them in, because then it would have been the duty of the Court, thus informed of the state of the next of kin, to appoint a guardian to defend for them. This case, itself, shews the importance that this requisite of the Act should have been attended to at the proper time ; for, if it had, the conflict would have been avoided, which now exists between the witnesses upon the essential point, whether the supposed testator gave the requisite evidence, that his words were not uttered in loose discourse but *animo testandi>*by calling on persons to bear witness to that intention. At this day there can be no certainty, it seems, on that point, as the examination at the probate was *ore tenus.,*and o.ne of the witnesses, a respectable man, deposes that there was no such calling on any body, and that neither he nor the other witness deposed or was examined to it. at the probate ; while another person, equally respectable, states, although he cannot prove that the deceased did call in that manner on the witnesses, that yet both of them swore on that occasion, that he did. Thus it is seen, that the very evil' has in this instance been produced, against which the wholesome enactment in the statute was directed. It is said, indeed, that the probate imports that this evidence was given, as it states that the will was “duly provedwhich could not be without the evidence-; and that it gives also-the greater credit to the witness Rankin. But there is very little weight to be given to that expression in an *ex parte pro*
      *162
      *bate,*and, especially, when it is clear that in one respect, at least, it was not duly proved, inasmuch as the next of kin were not called in, nor any enquiry made for them upon process. Besides, Wilson’s statement is much corroborated by the omission of any such words in the supposed will, inasmuch as he states positively, that every thing was reduced to writing, which the party deceased said on the subject. Whether regard be had, then, to the form of the proceeding in the probate cause, or to the sufficiency of the instrument, as constituting a will, the probate was improperly passed.

If acquiescence could supply in such a case the intrinsic defect of the probate from the omission to call in the next of kin, we think there is nothing to establish such an acquiescence as can bar the children from demanding a reprobate. There is no statute of limitations applicable to the case. The bar, if any, must arise solely from the presumption of abandonment, cr of satisfaction of the claims of the parties as next of kin. It is clear, there is no satisfaction. None is pretended. As to the abandonment, the mother says only, that the husbands, as well as her daughters, knew of the will aDd probate. But it is not established, that they were properly aware of their rights and intended to waive them. On the contrary, the daughters were never *sui juris,*having been infants when they married and under coverture at their deaths ; and it is certain, that the husbands were not satisfied and did not intend to acquiesce finally in what had been done, but expressed themselves otherwise from time to time, to the extent, even, of domestic disquiet, according to the allegation of the mother herself. They intended in some way to assert the right of their wives to shares of the negroes, if the mother would not make something like a fair distribution of herself; and, as soon as she finally re. fused, they instituted the present suit. As administrators of their wives, they are entitled to have the probate re. *163voked and leave the other party to propound the instrument again, if she shall still think proper to set it up as a will. The sentence in the Superior Court is affirmed with costs; and this will be certified to that Court, in order that the parties may make up an issue, if they think proper, or that such other steps shall be taken for the administration of the estate as the law requires.

Per Curiam. Judgment accordingly.