Andrews v. Andrews

Citations

• 48 Miss. 220

Syllabus

<p>1. Nuncupative wills. — Our statute (Rev. Code, 1857, p. 433, art. 38; ib. 1871, § 2392) is a substantial re-enactment of tlie English statute of frauds (29 Charles I, chap. 3, § 19), which provides that no nuncupative will shall be good unless it be proved that the testator, at the time of pronouncing it, did bid the persons present,*or some of them, to bear witness that such was his will, or words to that effect. These stringent provisions are supposed to have been induced by the gross fraud attempted in the case of Cole v. Mordaunt, 4 Yes. 196, note.</p> <p>2. Same — rogatio testium. — Nuncupative wills, though tolerated, are by no means favorites of the law. Wherefore, not only is the law more strictly construed, but the evidence of the factum of a nuncupative will is required to be more strict and stringent, including the testamentary capacity, the animus testandi and the rogatio testium, than in the case of a written will. Words by the deceased at the time, indicating his wish that those present, or some of them, shall bear witness that such is his will, are indispensable.</p> <p>3. Same — case at bar. — The words sought to be established as a nuncupative will were drawn from the accused by an interrogatory put by an attending physician. In such cases the court must be still more upon its guard against importunity, incapacity, spontaniety and volition. And there being no rogatio testium at the time of the nuncupation, the facts proved are insufficient to establish a nuncupative will.</p>