Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-01-21

in the presence of Thomas Muzzy and j.
w. Miller, told deceased that he was very
sick and could live but short time.
Mcdaniel said he knew he was very bad.
Woods then asked him if he had any re-
quest to make, or any disposition of his
property, If so, he ought to make it.
Mcdaniel then said, 'That he wanted his
two children, Winton Thurman aud Sally
Thurman, to have his place, and made
equal with his other children" The de-
ceased never spoke after this declaration
was made, and died in three or four hours.
On the 18th day of January, 1868, the
declarations of deceased, as above given,
were reduced to writing by d. +. Woods,
and sworn to by him and Thomas Muzzy
before g. W. Martin, Justice OF the
Peace of Warren county, on the same day.
At the next succeeding April term of
the County Court of Warren county, the
paper drawn UP by Woods as the nun
cupative will of the deceased, was offered
for probate, and the declarations as set
out in the papers produced by Woods,
Muzzy and ]. w. Miller, the three wit
nesses who were present when they were
made by deceased.
Plaintiffs in error appeared in the
County Court and contested the validity
of the alleged will, whereupon the fact
was certified to the Circuit Court of said
county, together with the paper writing
propouuded for probate as the nuncups-
tive will of Abram Mcdaniel, deceased.
An Issue of devisavit vel non was made
up in the Circuit Court, aud this issue
was tried by a jury of Warren county at
the June term, 1867, of the Circuit Court,
resulting in verdict establishing the will.
d. f. Woods, Thomas Muzzy and j.
w. Miller, upon the trial of the case,
proved that deceased died January 8,
1853, at his own house in Warren county
where he had resided for several years;
that he was very sick, and suffering at
the times great bodily pain; that three or
four hours before his death, d. F. Woods
approached his bedside and told deceased
that he was very sick, and that he could
live but short time. Deceased replied
that he knew he was very bad. Woods
testifies that he then told him if he had
any request to make, or wanted to make
any disposition of his property, he ought
to make it. Mcdaniel then said he
wanted Whit and Sis. (meaning as they
understood him, Winter Thurman and
Sally Thurman, the defendants in error,
to have his land, and enough to make
them equal with the rest of his children.
Thomas Muzzy stated on the trial, that
deceased said ''that he wanted the Thur
mans to have that land, and enough of
his other property, to be made equal with
the rest of his heirs"
]. w. Miller testified on the trial that
deceased said che wanted them, the
Thurman children, Whit and SIS, to
have his land, and enough of his other
property, to make them equal with his
other children"
The Humans were the illegitlmste
children of deceased, and Smiths wife
was his legitimate child.
All three of these witnesses, four days
after the death of Mcdaniel, swore to the
paper presented for probate, and upon
which the issue in this case was made up,
as containing the declaration of Nc
Daniel.
Py our statute, which is substantial
copy of the statute of 20 Car, 2, for the
prevention of frauds and perjuries, it if
indispensably requisite to the validity of 9
nuncupstive will, that the will be proved
by two disinterested witnesses present at
the time of making thereof, and they, OF
some of them, must be especially re,
quired to bear witness thereto by the tes-
tator himself. Code, 2, 165.
1t has been held by this court that it is
sufficient compliance with that part OF
the statute which requires that the wit
nesses, or some of them, shall be espe'
cially required to bear witness thereto by
the testator himself, if he, by intelligent
act and language, invoke their special at
| tention to what he has said or is about to
ssv, 4 Hum, 342. In that case the tes-
tator addressing the witnesses, said: 81
wish to make disposition of my effects, u
and then went on to declare the nuncupa
ton, and explained to the witnesses the
motives for making the particular dlspo-
sition of his property. And this wa
properly held valid nuucupative will,
as complying with the statute requiring
that the witnesses present, or some OF
them, to beaI witness thereto, and as also
clearly evincing an intention to perform
a testsmentary sc'.
In the case in s Hum, 645-6, thu
court saws, ave have no desire or inten
ton to 90 further in extending the mean
ing of the words specially required tt
bear witness thereto, than has been done
in the case of Baker vs.. Davidson, 4
Hum, 342.
| T. .,:u 1o.o, oe.a +l;o court hold tha
it is indispensable to valid nuncupatlv'
will. that the testator should especially
call the witnesses to the fact, and while
is not necessary 10 use the precise Ian
guage of the statute, words of equiVslen
| import should be used, showing that ties
tator considered himself engaged in ties
tamentary act. 2 Cold, 80.
The provisions of the statute in regarc
to nucupative wills have been strict
ly enforced by the courts, and they haV'
generally adopted rigid and strict con
struction in regard to them. 1t must ap
pear that all the requi rements of the Lew
have been complied with.
| Independent of the statuter of frauds
the factum of a nuncupative will require
to be proved by more strict evidence tha'
a written one. The testamentary capac
ity. the urainlus teStdndi, and the rogd
ito testiure, at the time of the allege'
nuncupation, must appear by the cleareS
and most indisputable testimony. Rec
on Wills, part /, 1873; l WINS. O.
Exrs., 105.
Tested by these rules of law, and b
the rules laid down for their construction
can it be said that the paper propounde
and upon which the issue in this case hs
been made, can be held to express tn
nuneupative will of the testator Z
We think not, for several reasons.
The leading object of that part OF on
statute which requires that the witnesses
or some of them, shall be especially n
ouired to bear witness thereto by tn
testator himself, is to distinguish betwee
a valid nuncupation and casual converse
lions by one in his illness as to his wish,
on the subject of his property, and
GUARD against the latter being impose
1pon the court as testamentary. Hum
344.
In all the cases in our books of report
in which nuncupative wills have bee
sustained, the testator Enthusiastically ind
Gated his purpose of performing a lest
mentary act. -
! But in this case the expression that
"wanted his two children, Winton al
| CoII,- Thurman IN have his place, al