Bellamy v. Peeler

Lumpkin, Justice.

Nuncupative wills must be made in the time of the last sickness of the deceased. Code, §2479. The law in its wisdom allows the making of wills of this kind, but they must be made, not from choice, but of neces *468 sity. Accordingly, it was held in Ellington v. Dillard et al., 42 Ga. 361 , that such a will must be made in extremis.

In testing the validity of an alleged nuncupative will, it is impossible, in the nature of things, to lay down a fixed and unvarying mile as to what length of time may elapse between the dictation of the will and the death of the testator. In such case, the test to be applied is not one of mere time alone. For example, a -person conscious of approaching death might dictate an oral will, and within a few minutes after so doing, become insensible and remain so for days or even weeks before death ensued, and finally die without having returned to consciousness. In a case like this, the will would undoubtedly be good. On the other hand, a person in a dying condition might go through the form of-making a nuncupative will, and live only a few hours thereafter; and yet, the will would not be valid if it also appeared that a scrivener was present ready to reduce the will to writing, that there was ample time for so doing, nothing to prevent it, and still the testator deliberately declined to have this done. After all, it is a question of fact to be determined by the jury whether or not, under all the circumstances, there was a reasonable opportunity to make a written will. In any given case, therefore, the court would not be warranted in charging that an alleged nuncupative will would not be invalid because, in point of fact, the testator may have had time to have it reduced to writing, if before death he lingered in a conscious condition for only such and such a length of time. On the contrary, we think the charge actually given in the case now under consideration, and quoted in the second head-note, is about as accurate and proper an instruction upon the subject as the court could well have given. ¥e adopt that charge as the correct law applicable to the case in hand.

*469 Upon an examination into the'merits of the case, we find that the evidence amply warranted the verdict, and no reason for setting it aside appears.

Judgment affirmed.