Biddle v. Biddle

Nuncupative Wills — Construction of Article 93, section 306, of the Code — Bogatio testium. To constitute a valid nuncupative will, there must be evidence of a sound and disposing mind on tho part of the testator, a present intention to dispose, and apt words of disposition; and th & factum of the will must bo proved by the oaths of three witnesses at least, who were present at tho making thereof; and it must also be proved that the testator at tho time of pronouncing the will, requested the persons present, or some of them, to bear witness that such was his will, or something equivalent thereto; all of which must concur in tho last sickness of the deceased. The words “to that etfecfc,” in section 306, of Article 93, of the Code of Public General Laws, do not qualify tho whole section, or all its preceding provisions, but only the last clause of the sentence, to which they are annexed, that is, “to bear witness that such was his will.” This may be done in the language of the Code, or by equivalent words. The “rogatio testium,” required by the Code as essential to the validity of .a nuncupative will, cannot bo supplied by inference from the nuncupation itself.

Appeal from the Circuit Court for Cecil County. The. alleged nuncupative will of Laura L. Biddle, propounded by the appellant, who claimed as sole legatee, consisted of four affidavits or depositions taken before the Orphans’ Court of Cecil county, on the 10th of January, 1871. Almira V. Bramell testified that she knew Laura L. Biddle; she died in the latter part of August, 1870; on the 23d, she thought; she died at Miss Ann Biddle’s, Chesapeake city, Cecil county, Maryland; that was her home, and to deponent’s knowledge she had been residing there seven-teed mouths; she died Wednesday evening; it was after dark; about four o’clock in the morning of that day she called, “doctor;” then she said, “money;” then she called,■ “aunty;” then she said, “money” a number of times over; then Mrs. Hayes said, “ Laura, do you want your aunty to have your money ? ” She said, “ Yes, all my money,” and she raised her head from her pillow and her eyes followed her aunt Haney; her aunt Haney was in the room, but not by the bed; while she was talking this way, her eyes were following her aunt Haney; she was in her right mind; the doctor was not in the house any time during this conversation ; she did not say she washed us to remember these words as her will; she did not say so in words; Laura was nineteen years of age; had known Laura L. Biddle about fifteen months; knew her intimately; had seen her, on an average, two or three times a day during that period; between five and ten minutes after the conversation above- detailed, she asked her aunty for some laudanum, and her aunty gave it to her — after which she went to sleep and slept till after daylight, and when she awoke she talked a great deal and incoherently ; deponent could not make out anything she said. Matilda White deposed that Laura L. Biddle died in the latter part of August, 1870; she died at Miss Ann Biddle’s; deponent was there on the morning before she died; Mrs. Hayes, Mrs. Bramell, Miss Ann Biddle and deponent were there in the morning before she died; she first called, “doctor; ” she said, “my money then she said, “my aunty;” Mrs. Hayes then asked her if she wanted her aunty to have her money; she said, “Yes;” then Mrs. Hayes asked her if she wanted her aunty to have all her money, and she said, “Yes, all my money;” Miss Ann Biddle was passing backwards and forwards through the room; when she spoke the above words, she looked towards her aunt; she did not ask deponent to remember the above words; she was in her right mind. Cena B. ITayes deposed that Laura L. Biddle died in August, in the latter part, in the year 1870, in Chesapeake city, Cecil county, Maryland, at Miss Haney Biddle’s; she wras living there, and had been all her life at Miss Haney Biddle’s; about four o’clock of the morning of the day she died, she called, “doctor;” then she called, “money;” then she called, “ aunty,” and looked towards her aunt as she was crossing the room — her aunt, Miss Ann.Biddle; deponent asked Laura L. Biddle if she wanted her aunty to have her money, and she said, “Yes, all my money; ” Laura L. Biddle always called Miss Ann Biddle “ Aunty; ” her other aunts she' gave them their Christian names in addition, as, “ Aunt Mary; ” I think she wras in her right mind at the time; while her aunt, Miss Ann Biddle, was in the room, and while she was speaking, as above stated,- her eyes were continually following her. Ann Biddle deposed that Laura L. Biddle died at Chesapeake city, in Cecil county, State of Maryland; deponent was not certain,' but thought it was about the 23d of August, 1870; it^vas at my house; I am her great aunt; she always called me “ Aunty ” simply, without any addition; she lived with me, and has ever since she was nine years old, and lived there at the time of her death; on the day she died I was in her room; before daylight, on the morning of the day she died, I heard Mrs. Hayes say, “Laura, do you want your aunty to have your money? ” and she replied, “ Yes, all my money;” she was nineteen years old on the 18th of August past; she was in her right mind; in speaking to me, she called me “Aunt}'-,” sometimes “Aunt Nancy;” her other aunts she always called them by their Christian names, as, “ Aunt Mary.”. At the instance of the appellant, an issue, to be found set out in the opinion of the Court, was transmitted from the Orphans’ Court to the Circuit Court, for trial. At 'the trial it was admitted that the estate of Laura L. Biddle, at the time of her death, exceeded $500 in value. It was also proved that Laura L. Biddle died of consumption ; that she had been sick of that disease since April preceding her death, and since some time in June of the same year, had been attended and constantly visited by Dr. Wallace; that for about a month she was confined to the house, but was passing from one room to another until near the time of her death, and before her death had been confined to her bed; but that the doctor had never told her, nor did it appear that any person had ever told hex', until the morning of the day of her death, that she was about to die, or that her case was hopeless. It was further proved that in the afternoon of the day preceding her death, she talked about what she would do when she got well; that afterwards, about midnight of the same day, she was taken much worse, and her friends were very much alarmed on her account, and thought she was about to die, and sent for her physician, Dr. Wallace, and she herself appeared to be alarmed, and her voice was changed; that about four o’clock in the morning she became very restless and uneasy, and apparently excited, and tried to talk, but had much difficulty in utterance; that she raised her head from her pillow and looked around the room, her eyes following the plaintiff, whom she always called “Aunty,” xvho was passing about the room, and spoke with difficulty. Dr. Wallace testified that when he was sent for on the morning of the day of her death, he was told by the messenger who came for him that she wanted to make a will, and he took with him pen, ink and paper for the purpose of writing a will for her if she desired it; that he arrived at the house after daylight, but took no note of the hour, and could not pretend to fix the exact time- — -it was shortly after the alleged nuncupation ; that he told the persons present to leave the room, which they did, and he said to her, “ Laura, I have come prepared to write your will, and will do so if you wish it,” or words to that effect; she made no answer whatever; he repeated it in the same or similar words, and instead of x-eplying to xvhat he had said, she said, “ Doctor, do you think I will die?” to which he replied, “Yes, Laura, I think you will;” to which she made no reply, but turned over in her bed and commenced to cry; these were the only words she uttered during the whole of that visit or ever afterwards, to witness’ knowledge. At the trial two exceptions were taken — one to the refusal of the Court to allow the plaintiff to testify in her own behalf, the other to the ruling of the Court on the prayers. First Exception: Is sufficiently stated in the opinion of the Court. Second Exception: The plaintiff offered the following prayers: 1st. If the jury believe from the evidence that Laura L. Biddle died on the 23d of August, 1870, and that upon that day, in the pi resen ce of three or four creditable witnesses, did pronounce the words, “ doctor,” and “ money,” and “ aunty,” and that thereupon Cena B. Hayes, one of the witnesses, asked her if she wanted her aunty to have her money, and that she replied, “Yes, all my money,” in the manner and under the circumstances as testified to by said witnesses, and stated in the alleged nuncupative will propounded to the Orphans’ Court of Cecil county, on the 10th of January, 1871, and that at the time of said speaking the said Laura intended thereby to make her last will and testament, and that she W'as of sound and disposing mind and capable of executing a valid deed or contract; and shall further believe, that at the time of pronouncing the said will she did bid the persons present, or some of them, to bear witness that such was her will, or to that effect, and shall also believe that the said alleged nuncupative will was made at the time of the last sickness of the said Laura, when she was under the immediate apprehension of death and unable to execute a formal will, and at the house of her habitation, where she had resided for more than ten days, then their verdict must be for the plaintiff. 2d. In making a will there is no magic in words, and the disposition of a testator’s effects may be as valid when expressed in the form of a wish, or desire, or request, as when in the most impressive words of command. 3d. That in order to satisfy that paortion of the law which requires that a testator, in making a nuncupative or verbal will, “shall bid the persons present, or some of them, to bear witness that such was his will, or to that effect,” it is sufficient, if the jury believe from the evidence that the said Laura L. Biddle meant to direct the disposition she wished to be made of her money after her death, and did, by intelligent act and language, invoke the special attention and attestation of the persons present, or some of them, to what she was going to say, or had said, in constituting such disposition. 4th. That the bidding of the witnesses “ to bear witness that such was her will,” required by the statute, may be expressed by any words or acts which, in connection with the surrounding circumstances, the jury may fmd did clearly and intelligently indicate to the witnesses, or some of them, that such was her wish and intent. 5th. Thai although it is necessary that the said Laura, in speaking the words contained in the alleged nuncupative will, intended them to operate as, and express the disposition she wished to be made of her effects after death, yet it is not necessary that she should tell the witnesses, or any of them, in words, that she wished to make a will; but such intention may be implied from facts and circumstances surrounding the transaction. 6th. If the jury believe the said Laura uttered the words contained in the alleged nuncupative will, then, in ascertaining whether she intended them to operate as, and express the disposition she wished to be made of her money after her death, the jury may consider whether she was conscious of extreme illness, or whether she apprehended the probability of the near approach of death. They may also consider the signification, in ordinary parlance, of the words she used, and in connection with the circumstances under which they were uttered, and her previously expressed wish to make a will, in connection with the words addressed to her. They may consider said words also in connection with her physical inability to be more explicit, if they believe such physical inability. They may consider whether said words were uttered in serious earnest, or as loose, casual conversation. If they believe the said words were uttered seriously, and imparted in themselves a gift, then they may consider whether said words imported a present gift of her money to her aunty, to take effect immediately, or whether they imported a gift to her said aunt, to take effect at the time, and only in the event of her death. They may consider whether the conversation in which said words were uttered originated with her. They may consider also, whether the words, under the circumstances, are capable of any other rational explanation than that she desired by them to express her wishes as to the future disposition of her money in the event of her death. The defendants asked the Court to instruct the jury as follows: That under the evidence in this case, they must find that the alleged nuncupative will of Laura L. Biddle, propounded to the Orphans’ Court on the 10th of January, 1871, as the last will and testament of said Laura, was not in fact and in law her last will and testament. The Court (Wickes and Stump, J.) rejected the prayers of the plaintiff, and granted the prayer of the defendants. The verdict and judgment being for the defendants, the -plaintiff appealed.