Asa Mitchell, Guardian, v. J. and E. V. Vickers, 20 Tex. 377

Hemphill, Ch. J. Nuncupative wills are not favorites of the law. But as they are authorized by the statute, they must, when duly proved, be allowed and established. They are hedged round with numerous restrictions, to guard against the frauds for which oral wills offer so many facilities; and it is a well established rule, that strict proof is required of all the requisites prescribed by the law. (2 Greenleaf, 298; 4 Rawle, 46; 20 Johnson, 502; 1 Jarman on Wills, 89; Modern Probate of Wills, 304.) The provision of the statute (Hart. Dig.

Art. 1113,) is essentially a copy from the statute of frauds of the 29 Ch. 2, Sect. 19-21; and in substance the same provision is found in the codes of most of the other States; and everywhere a strict construction has been applied. It may be laid down as a general rule, that the testimony of the witnesses must agree, at least substantially, as to the words spoken, or the dispositions made by the deceased. There can be no will, no disposition of the property, if the witnesses cannot concur as to what, in substance, was such disposition.

It was manifestly the intention of the statute, that such will should be proved by three witnesses; and although two of the witnesses testify in substance, with perhaps one variance, to the same bequests and dispositions; yet some of the material legacies or directions are not sustained by the testimony of the other witnesses. Dr. Desmuke testifies that Mrs. Wells (who was the sister of the deceased, and her heir-at-law) was to have a choice tract of land, out of her lands generally, without referring to size or location. Her niece Susan, the daughter of Mrs.

Wells, to have a choice of her colored servants; that her sister, Mrs. Wells, after payment of the debts, was to have the use of all of her negroes and other property, free of charge, until Simeon Cooley should come of age, when she wished him to have all her lands and negroes, except what was given her sister and niece. The testimony of Mr. Smith is substantially the same, though there might be a question whether, under his evidence, Mrs.

Wells would not be responsible for the profits of the property during the minority of Simeon Cooley; and if so, there would be a material variance from the evidence of the previous witnesses. Another witness testified that the deceased wished Mrs. Wells to have a tract of land, without saying where, and that she would take charge of all the negroes, and to take one of the best of the negroes; that the little boy Simeon was to have all of the property except what she wished Mrs. Wells to have. Was not certain whether Mrs. Wells was to have the negro for herself or her daughter Susan.

Here nothing is said about the lands of the deceased, nor how long Mrs. Wells was to have charge of even the negroes, and whether free of charge or not. Nor is it certain whether Mrs. Wells or her daughter was to have the negro. Another witness testifies that Mrs. Wells was to have a tract of land on the Cíbolo, and was to have choice of her colored servants, and that the little boy should stay with his aunt, Mrs. Wells. By this witness there was some certainty as to the location of the land, and Mrs. Wells was to have choice of servants, and not her daughter.

This evidence does not sufficiently establish what in fact was the disposition or intention of the deceased. There is too much discrepancy and conflict, for the words spoken to be regarded as the last will of the deceased, or sufficient to change the order of descent, and divert the property from the channel marked by the law. In Mason v. Deerman, 1 Munford, 456, there were notes taken from the dictation of the testator as to his intentions.

A draft of the will was taken from these notes, but the deceased had then become delirious, and it was held that the notes and draft could not be set up as a written will, but the notes might be admitted to record as containing the substance of a nuncupative will, and a distinction was taken between the notes and the draft, the latter having left out one of the dispositions which was directed in the former, and it was held that the notes should be established as the will of the deceased. Judgment affirmed.