Mellor v. Smyth

Citations

• 220 Pa. 169
• 69 A. 592
• 1908 Pa. LEXIS 743

Syllabus

<p>Will — Nuncupative will — Evidence—Charge of court.</p> <p>The provisions of the statute relating to wills are mandatory that a will must be in writing and signed by the testator, unless he is prevented from so doing by the immediate apprehension of death and there is neither time nor opportunity to make a written testament. There must be an urgent necessity or an emergency to justify a nuncupation.</p> <p>In a contest to determine the validity of a nuncupative will, where it appears that the testatrix survived thirty-four hours after making of the will, a physician may be permitted to testify as to the physical condition of the decedent during the interval between the making of the will and the decedent’s death.</p> <p>On the trial of an issue to determine the validity of a nuncupative will, where the only question for the determination of the jury is whether the will was made when the testatrix was in extremis, it is reversible error for the court in its charge to dwell on the general proposition that the law does not favor, but merely tolerates, a nuncupative will. Such an instruction tends to lead the jury from the consideration of the one question submitted for their determination.</p> <p>On the trial of an issue to determine the validity of a nuncupative will, it is proper for the court to call the attention of the jury to the interest of the witnesses in the result; and if the court does so in reference to the witnesses for the will it should do the same in reference to the witnesses against the will.</p>