Offutt et al. vs Offutt, 3 B. Mon 162

Chief Justice Robertson delivered the opinion of tiie Court. Zephaniah B. Offutt, owning an estate consisting oí more than $8000 in money and of some slaves, obtained through his wife — attempted to make a testamentary disposition of his entire property, immediately preceding iris death. A paper purporting to be his will, was written at bis request and in his presence, bequeathing $500 to the Catholic church, $300 to the Baptist, Methodist, and Presbyterian churches — $100 to each — and the residue of his estate to his wife.

It was read to and approved by him — but, although he then had a disposing mind, yet he died before the paper could either be subscribed by himself or attested by the witnesses present, who signed their names after he had expired, or when he was in the act of expiration, and incapable of observing the attestation.

A paper not perfected as a -written will, may be established .as a nuncupative will, where its complation is prevented by the act of God ; or from any other cause than an intention to abandon or postpone its oonsuinrnation .^Nuncupative pass slaves, That document having been established in the proper County Gourt as a nuncupative will, the probate was affirmed on an appeal to the Circuit Court, and this appeal to this Court brings up the case for ultimate revision.

A paper not perfected as a written will, may be established as a nuncupative disposition, if its non-completion in the form contemplated, resulted from the act of God or from any other cause, than an intention to abandon or postpone the consummation of it according to law, provided there shall be proof of the testamentary declarations, by the requisite number of competent witnesses, who were present when those declarations were made: Mason vs Dunman, (1 Munford’s Va.

Repts. 456.) And the fact that it may not be sufficient to dispose of the testator’s whole estate as he intended, but leaves a flthough a. portion of it undivised, contrary to his declared should not always and alone, defeat it as far good and effectual as a nuncupative will, will purporting to dispose of both real and tate may not have been so published as to bd position of the realty, it may, nevertheless, ed as a good testamentary disposition of the'^^rsonalty: (1 Williamson Ex’rs. 46.) And if there be any case in which this might be done, this is certainly a case of that kind — because here the establishment of such a will as passes the entire estate intended to be passed, except the slaves, can frustrate the testator’s intentions, as to no other legatee than his wife, whom he intended to be the devisee of the slaves, and at whose instánce and for whose benefit his testament has been established as nuncupative only.

Others should not, therefore, object. It maybe that the document read to the testator, might have been legally proved as a good written will of personal property: (1 Williams on Ex’rs., 47-8-9-50-1-2, and the authorities there cited.) But nevertheless, it would not pass the slaves, because our statute requires testamentary dispositions of slaves to be made in the manner prescribed for passing land by will.

But the fact that the will has been only established as a nuncupative, instead of a written disposition, cannot be material to the appellants, because each form of testament would, accoiding to our local law, pass the same and no other property. McHenry for appellants: S. Todd for appellees. The order establishing the will must, therefore, be affirmed.