Boyer against Frick, 4 Watts & Serg. 357

The opinion of the Court was delivered by Gibson, C. J. — Nuncupation is not a matter of right, but of special indulgence, as a last resource. It is an exception to the rule of the statute, which has no foundation but necessity, and which, as it affords great temptation to the perjury and fraud which it was the aim of the leading provisions to prevent, cannot be resorted to as a measure of mere convenience.

It is true that the statute, speaking in general terms, allows it in the last sickness, without specifying the degree of its urgency; but from the clause which requires the act to be done “ in the house of the testator’s habitation or dwelling, except where such person shall be surprised by sickness” abroad, we may safely infer that the compilers of the statute contemplated a state of illness so violent as to deprive the patient of power to comply with the general regulation.

There could be no reason to license the making of a verbal testament in the last, rather than in any previous sickness, where the danger to be feared from misapprehension or corruption of the witnesses, might be avoided as readily in the one case as in the other.

Why the compilers did not define the emergency which dispenses with the signature merely, in the very words they used to define the emergency which dispenses with writing altogether, it would be hard to conjecture, were it not for tbe fact that the words “ last sickness,” used in connexion with the subject of nuncupation in the former statute also, had received a judicial construction in Yarnall’s Case (4 Rawle 65), which it may-have been thought impolitic to disturb.

But the difference between these and the words “extremity of last sickness,” used in the present in relation to an omission of the signature, was certainly not intended to mark a difference of degree in the urgency of the case; for there is no room for a difference in reason, because where there would be time to affix the signature, there would be time also to write down the few and simple provisions of such a will as may be carried in the memory of witnesses. But what settles the principle is the precedent in Yarnall’s Case, in which we ruled, on the authority of Chancellor Kent’s opinion in Prince v.

Hazelton, (20 Johns. 503), and indeed in coincidence with the scope of the statute, that a nuncupative will is good only where it has been made in such extremity of the last sickness as precluded a written one. The principle of that decision, which passed under the eye of the compilers without emendation, established a particular construction which is not to be unsettled by any accidental difference of expression in an analogous part of the statute. Had they designed to change it, they would have been explicit.

A nuncupative will is to be sustained, therefore, only when it has been made in a case of the last necessity. In the words of the Chief Justice of Connecticut, quoted in Yarnall’s Case, was' the decedent in this instance in extremis, and without time or opportunity to make a written testament ? The declaration of her will was made on a Thursday, in expectation of a surgical operation for strangulated rupture, under which she had laboured. from the preceding Monday, and which terminated fatally on the following Saturday.

The operation was subsequently performed, and the surgeon directed her merely to observe a recumbent posture. She was easy during the intervening Friday, but seldom spoke when she was not spoken to. Such are the principal features of the case disclosed by the witnesses for the will. Now, taking for granted that the subject of setting her house in Order, occurred to her for the first time on the morning of the operation, which is the most favourable view of the facts for the plaintiffs, still she had ample time to make' a written will before the surgeon arrived.

It would have taken very little more time to write down the testamentary direction she committed to the witnesses to turn the property into cash, and divide it after payment of debts among Frick’s children, than it would have taken to have the paper signed faith her name by her own hand, or by the hand of another in her presence, had it been written already. All this she was bodily and mentally able to do; and why was it not done ? The necessity of the operation was not so instant as to preclude everything else, for the surgeon was not in attendance.

The declaration of her will was made at eight o’clock in the morning, and the operation was delayed till noon; so that there was an interval of four hours, during which she had the entire use of her faculties, and which was sufficient for a more complicated arrangement than the one she attempted. It is unnecessary to inquire whether she could safely have made a written will at any time after the operation was performed; for the plaintiffs’ own evidence shows distinctly that such a will might have been made before it; and it therefore lays no foundation for a nuncupative one.

If the decedent was dissuaded from having her will reduced to writing by a belief that a verbal one would do, she committed an incurable error. In Stricker v. Groves, (5 Whart. 386), want of the testator’s signature was not allowed to be supplied by proof of his inability to hold a pen, and of repeated refusals by others to sign the paper for him, induced by a misapprehension of the law.

That case had a more imposing claim to indulgence than the present one has, inasmuch as the testator had done all that was in his power to do; yet it was properly said that the frustration of an effort to make a will by the folly and perverseness even of those whom the testator has called to his assistance, is without remedy. The requisites of the statute must be complied with according to its spirit.

On the plaintiffs’ own evidence, then, the nuncupation was invalid; but taking into the case the evidence on the part of the defendants, we find the decedent impressed with the necessity of making her will on the first day of her illness. Thus she appears to have had three whole days at her disposal, a period much more than adequate to the making of any written will. But the jury ought not to have been instructed, in relation to either state of the case, that a nuncupative will is valid when made in the last sickness, though the decedent were not in extremis. Judgment reversed, and a venire de novo awarded.