Sykes et al. V. Sykes et al. JANUARY 1830. 4th of February, about two days after the words spoken; that the words were spoken in his presence, alone at the time, but that he had declared the same intention to twe other persons, about the 20th of January previous. They answer, they believe fully his intention was as expressed. They further answer, that the deceased became partially insane some time in the night after making this will, and so continued till his death, which occurred about thirty hours after. The answer further states, that the deceased appeared to be under the belief, when he spoke the words, that he would die. It is also denied that the words were casually spoken, but that the questions were asked, and the inquiry made fairly with the view and purpose to learn what disposition the deceased wished to be made of his property after his decease. Murphy, a witness for the defendants, deposed that the deceased stated, about a month before his death, that he was very much attached to his brother James, and that if he were then to die, he would bequeath him all his property; and that if he were married, and had no children, he would leave him one half of his estate. Bulloch, another witness, deposed, that about fifteen or twenty days before his decease, the intestate said, that in case of his death, he wished his brother James to have the whole of his property. Sturgis, says he visited the deceased as a physician, and that, with the exception of three or four hours, he was with him from an hour before sunset on Friday evening, till his decease, which occurred on Saturday night, about two o'clock; that during that time, he was not in a situation to have made any disposition of his property, or to come to a correct conclusion on any subject; that he was too weak to have written a will, and delirious. It was admitted, that during the illness of the deceased, he had every ordinary facility to have written his will, as pen, ink, paper and attending friends; and that he could write, when physically able. Also, that the deceased had declared himself more partial to his brother James, who had come with him to this country, and lived with him at the time of his death, than towards his other brothers and sister, who lived in Virginia. The cause was heard before Judge Gayle, at April term 1828, who rendered a decree, dismissing the bill, and establishing the will. To reverse which decree, the complainants sued their writ of error to this Court. CLAY and M'CLUNG, for the appellants, argued that the JANUARY 1830. evidence was insufficient to establish the words as a will; that they were not intended by the deceased as a will, and that no words could be established as a nuncupative will, unless spoken in extremis, and when there was neither time nor opportunity to make a written will. a HOPKINS and BRANDON, contra, argued that the decree was proper, because: 1st, one witness is sufficient to establish a nuncupative will, and it is sufficient to prove by evidence the animus testandi of the deceased.2d, the proof establishes that the will was made according to his intention long before expressed; and 3d, because it was made at his own house, in his last sickness, just before he died, and he was unable after making it, to have made or written any other. By JUDGE WHITE. In revising this decision, two main questions present themselves for our consideration: First, did the words spoken by the deceased, on the Friday before his death, manifest with sufficient legal certainty, that they were intended as his will; and secondly, were they spoken in that extremity in which alone the law authorizes a nuncupative will to be made. Toller, defines a will or testament to be "a legal declaration of a party's intentions, which he directs to be performed, after his death." When this declaration is reduced to writing, with the ordinary solemnities, there remains no question as to the intent of the testator to make his will. And if I mistake not, an examination of the cases at common law, of the disposition of personal estates by testament, will shew that the Courts have, at all times, been particularly careful to see that the animus testandi was fully proven before they would establish a will. Hence, even the reducing of a man's intention to writing, or directing it to be done, would not, if left incomplete, except under peculiar circumstances, be considered as his will; and the policy of our law has been from the earliest ages, to favor written wills; one motive for which, no doubt was, that the design of the testator might be clearly exhibited. Even in the days of remote antiquity, when reading and writing were such rare accomplishments as to confer peculiar privileges, nuncupative wills were not established, except when made in extremis; and experience soon taught our forefathers, that the license of the common law,. V. Sykes et al. a Laws of Ala 883-4. 20 John. Rep. 502. 2 Blkst: Com. 500. 882-3-4. 3 Thomas' Coke, 341-2and S. b Laws of Ala. 3 & notes 20 c 2 Blk. Com. 500-1-2-3 and note 16. 1 Munf. R. 456. d Blkst.Com. 501-2-3, note 16. Toller's Executors, 3 4, note 2, 59. 4 Henn. & Munf. 91. V. Sykes et al. JANUARY 1830. though narrowed to so small a compass, was still too great for the good of society. The celebrated case of Coles v. Mordaunt, in the 28th of Charles II., in which it is reported, that out of nine witnesses, sworn to prove a nuncupative will, almost all were perjured, and Mrs. Coles, herself, guilty of subornation of perjury, manifested that the temptation was too strong for human nature, and led soon after to the salutary statute of the 29th of Charles II., which with but slight variations, has been incorporated into our code. The numerous precautions and requirements of this statute have almost, (to use the language of Blackstone,) brought nuncupative wills into entire disuse. Great particularity is necessary to establish them, and nothing is of more importance than a clear manifestation of the animus testandi; therefore it is, that the statute requires that "the testator should call on the persons present at the time of making such will, or some of them, to take notice, or bear testimony, that such was his will, or to that effect." In the case before us, there was no particular call on the witness to take notice, &c. but it is contended that it was to that effect. What the deceased said, was in answer to a question put to him by the witness. This, of itself, does not prove that he had not the requisite animus testandi; but we are sustained by high authority in saying, that in such a case the Court should be more upon their guard against importunity, more jealous of capacity, and more strict to require evidence of clear intention than in ordinary cases. The facts shew, that in previous conversations, the deceased had expressed the same design to leave his property to his brother James, which he did on the Friday before his death; and as there was nothing peculiar in his last expressions on the subject, it may be fairly argued, that though they, together with what he had before said, evinced the inclination of his mind as to the disposition of his property, yet, that he did not intend them as the declaration of his will. Had this been his design, it is both reasonable and natural to suppose, that he would have accompanied his expressions with words more emphatic and unequivocal; and if we admit that he was conscious of the near approach of his dissolution, it is stranger still, that when the subject was brought to his recollection, by the question of the witness, he did not avail himself of the few remaining moments, either to have his will written, or to express it with a clear and unambigu Sykes et al. V. Sykes et al. ous manner and intent. To me, it is evident, that though JANUARY 1830. he did design to leave his property to his brother James, yet, either from a fluctuating state of mind, an unwillingness to do an act which brought the contemplation of death immediately before him, or deceived by a delusive hope of recovery, he did not make, or at any one time design to make his will, within either the words or spirit of the statute. As to the second point, it is worthy of remark, that our statute adopts the words of the 29th of Charles II., that nuncupative wills must be made "in the time of the last sickness;" and these expressions, as appears by the case cited from 20th Johnson, 502, have been construed by the Courts to mean, in extremis. These latter expressions, as appears from the same authority, were understood by the writers before the 29th of Charles II., when applied to this subject, to mean the veriest extremity, when a man, in the words of Perkins, "lieth languishing for fear of sudden death, and dareth not to stay the writing of his testament." Chancellor Kent sustains the same idea, by observing, that there is a strong analogy between these nuncupative wills, and a gift upon the death bed, or a donatio causa mortis, and these gifts, he says, are defined in the very terms of a proper nuncupative will. A donatio causa mortis, is where a man lies in extremity, or being surprised by sickness, and not having an opportunity of making his will, but lest he should die before he should make it; gives away personal property with his own hands." Then, to apply these explanations of in extremis or last sickness, to the case at bar, the deceased had time, had he been so disposed, after his expressions referred to, to have procured the writing of his will; he had friends and all the ordinary facilities at hand; but he did not do it, or express a desire to have it done. He must then, either have been indisposed at the time to make his testament, or aroused by the perilous extremity of his condition; he would have evinced something of that hurried anxiety which fearful necssity seldom fails to produce. Nothing, however, of this is in proof, but a simple expression only, that if he should die, (implying at least some degree of doubt,) he wished his brother James to have all his property. Upon the whole, I am well satisfied, that the indispensable requisite of the animus testandi is wanting in the case, and that it is perhaps more than doubtful, whether the deceased, at the time of using the expressions recorded as his will, was in that Sykes et al. V. Sykes et al. JANUARY 1830. extremity of condition, which would authorize him to make a nuucupative will. The decree then, dismissing the bill, was erroneous and must be reversed, and this Court proceeding to render such decree as should have been made below, order, adjudge and decree, that said nuncupative will be vacated, and set aside and that James T. Sykes, the administrator, proceed to distribute the estate of said John Sykes, deceased, according to law. Decree reversed and rendered. DAVIS V. DICKSON et al. 1. In debt on a guardian's bond, it is sufficient if the breaches are assigned in the replication, and it is not error that the declaration is on the penalty merely. 2. Such action must be in the name of the Judge of the County Court, for the use of the person injured. 3. It is however sufficient, if the declaration shews for whose use the suit is brought, it is not indispensable that it appear in the writ. 4. Nor is it necessary that it appear in the declaration in what particular manner he has become interested. 5. The bringing of the suit is sufficient evidence that the person injured requested it to be instituted. 6. Where a party pleads in abatement to the writ and declaration, and the plea is overruled on demurrer, he cannot insist on the same matter in arrest of judgment, if he has pleaded over. 7. The record contained three pleas, which were demurred to, but no disposition of them appeared. There was a trial on the merits, and motion in arrest of judgment. Held, that the motion in arrest was an abandonment of the pleas. THIS was an action of debt in Franklin Circuit Court, in which "James Davis, Judge of the County Court of Franklin county, successor of William Lucas," was plaintiff, and "Michael Dickson and John Davis" were defendants, instituted in 1824, to recover on a bond made by Dickson as principal, and Davis and one Thomas, as his securities, dated in May 1820, payable to Lucas, as Chief Justice of the County Court of Frankin county, and his successors in office, in the penalty of $20,000, conditioned, that Dickson, who had been appointed guardian of Nancy Rogers, an infant, should well and truly perform the duties of guardian. The declaration was on the penalty of the bond, without noticing the condition, or assigning special breaches, the usual breach only of non-payment of the money |