leaving an estate consisting of real estate of the value of $12,000 and personal property of the value of $1,000. Within six days after the death of Charles A. Smith, his widow, Lillie A. Smith, had reduced (to writing a paper purporting to be the nuncupative will of Charles A. Smith. * * *

Section 4993, Cobbey's Ann. St. 1903, provides as follows:

"No nuncupative will shall be good, when the estate thereby bequeathed shall exceed the value of one hundred and fifty dollars, that is not proved by the oath of three witnesses, at least, that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect; nor unless such noncupative will was made at the time of the last sickness of the deceased, and in the place of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the making of such will, except when such person was unexpectedly taken sick, being from home, and died before he or she had returned to the place of his or her habitation."

It will be noted that this provision of the statute requires that the will be proved by the oath of at least three witnesses who were present at the making thereof, and that it be proved that the testator at the time did bid the persons present, or some of them, to bear witness that such was his will, or to that effect. Under this provision of the statute it must be proved that the deceased, while uttering the words offered as a will, had not only a present testamentary intention, but also an intention to make an oral will, and that he intended that the words then uttered, and no others, should constitute his will. If he only gives instructions for a will that he desires to have reduced to writing, but fails to execute, the instructions cannot be sustained as a nuncupative will. 1 Underhill on Wills, § 174; In re Hedben's Estate, 20 N. J. Eq. 473; In re Male's Estate, 49 N. J. Eq. 266, 24 Atl. 370; Porter's Appeal, 10 Pa. 254; Reese v. Hawthorn, 10 Grat. (Va.) 548; Ellington v. Dillard, 42 Ga. 361.

Now, which one of the witnesses to this will, from the evidence above set out, was called upon to bear witness in the presence of the others that the words then spoken were intended to be the last will and testament of Charles A. Smith? It certainly was not the minor defendant, Alta Smith, for practically all she remembered of the conversation was that her father intended to give her $1,000, and let her mother have the balance. She did not remember, nor assume to remember, that he called on either Mr. Taylor or her mother to witness. that any particular words were his last will, or anything to that effect. If the will offered for probate is sustained, and if it were held that real estate may be devised by nuncupative will under our statute, the effect of this disposition of the estate of the decedent would be to practically disinherit this minor defendant, so that probably she could. not be properly held an incompetent witness because of interest in the

proposed will. But in view of the very tender age of this witness she would be presumptively incompetent to testify as either a subscribing witness or an attesting witness to a will in the absence of proof showing sufficient understanding to comprehend something of the nature and contents of the instrument which she was called upon to attest, and no proof of this kind is in the record. Proof of the rogatio testium or formal calling of witnesses to bear witness is a necessary element in this class of wills, and, no matter how clear the testatory intent may be proven, a paper offered as such will be invalid as a nuncupative will without satisfactory proof of this requisite. Page on Wills, § 237; Bundrick v. Haygood, 106 N. C. 468, 11 S. E. 423; Grossman's Estate, 175 Ill. 425, 51 N. E. 750, 67 Am. St. Rep. 219; Wiley's Estate, 187 Pa. 82, 40 Atl. 980, 67 Am. St. Rep 569; Page's Will, 23 Wis. 69; Porter's Appeal, 10 Pa. 254.

While it is true that in the proof of the rogatio testium no particular form of words is required, and it is sufficient under the provisions of our statute if the testator, by words, sign, or token, indicate to one of the witnesses to bear testimony that the words then spoken are intended as the last will of the testator, yet such word, sign, or token must have been intended by the testator as a request, and must have been understood as such by the witnesses present. Weir v. Chidester, 63 Ill. 453; Owens' Appeal, 37 Wis. 68; Bradford v. Clower, 60 Ill. App. 55. Now, if we construe the words as spoken to witness Taylor by decedent, "I want you to see that it goes that way," as a sufficient request to bear witness to his will, proof of this request is only supported by the testimony of witness Taylor, who is disinterested, and the wife of decedent, who is the beneficiary under the will. While it is only necessary to call on one witness to bear witness, yet it must be done in the presence of the other witnesses, and such fact must be proved by their testimony.

The general rule is that a nuncupative will cannot be established by one having an interest as legatee in the will. Beach on Wills (Pony Series) 10; Gills' Will, 2 Dana (Ky.) 447; Haus v. Palmer, 21 Pa. 296; Jones v. Norton, 10 Tex. 120. Nuncupative wills, except those of soldiers and sailors in the active military or naval service of the government, have never been looked upon with favor by the courts, and proof of such wills is required in strict conformity with the statute authorizing them. Morgan v. Stevens, 78 Ill. 287; Yarnall's Will, 4 Rawle (Pa.) 46, 26 Am. Dec. 115; Biddle v. Biddle, 36 Md. 630; Taylor's Appeal, 47 Pa. 31; Leachman v. Bonall, 1 Addams, Ecclesiastical Rep. 387.

Section 4995, Cobbey's Ann. St. 1903, provides as follows:

"All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, shall be wholly void unless there be two other subscribing witnesses to the same; but a new charge on the land of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will."

This section of the statute plainly declares the policy of preventing the proof of wills from being established by interested witnesses. While it is true that the words "subscribing witnesses," used in this section, technically construed, would only apply to a witness to a written will, and not to the attesting witness of an oral testament, yet, if this narrow construction be given the section above quoted, it destroys the effect of the use of the words "all beneficial devises, legacies and gifts whatsoever made or given in any will," for there can only be technically a subscribing witness to a written will; but if a construction be given this section in conformity with the manifest intention of the lawmakers we will treat "subscribing witness" as having been used as synonymous with "attesting witness," or a witness by whose testimony a will must be established.

We are cited by counsel for proponent to a well-written opinion from the Supreme Court of Georgia in the case of Smith v. Crotty, 112 Ga. 905, 38 S. E. 110, in which it was held that under the statutes of that state the words "subscribing witness" could only be held to apply to a witness to a written will. The statute construed in the case just cited is as follows: "If a subscribing witness is also a legatee or a devisee under the will, the witness is competent, but the legacy or devise is void." It will be noted that this statute does not apply to legacies and devises under any will, and it specifically makes the witness competent to testify, but renders the legacy void. Now, in the case at bar, it would be purely paradoxical to hold that two of the attesting witnesses, who are the legatees under the will and sole heirs at law of the deceased, might be permitted to testify, but could take no legacy under the will, for the effect of such a holding as this would be to leave the decedent intestate, and to admit to probate an alleged will that would neither bequeath nor devise any property to any one. We are therefore compelled to conclude that neither of the legatees named in this will are competent witnesses to establish the will.

There is another question urged for consideration, and that is as to whether the proof is sufficient to establish the fact that the will offered for probate was made at the time of the last sickness of the deceased. The expression "last sickness" or "last illness" occurs in nearly all American statutes providing for nuncupative wills, and is borrowed from the English statute, 29th Charles the Second, of which our own statute is a practical re-enactment. The leading American case which construes the term "last sickness" in statutes of wills was written by the learned Chancellor Kent in Prince v. Hazleton, 20 Johns. (N. Y.) 502, 11 Am. Dec. 307, and it was there held, by a divided court, however, that the term "last sickness" was equivalent to meaning "in extremis," or an illness or sickness so violent that the testator had not time, nor opportunity, nor means at hand, after making his oral will, to make a written will in legal form. This decision is generally commended by the text-writers, and has been followed in Bellamy v. Peeler, 96 Ga. 467, 23 S. E. 387; Donald v. Unger, 75 Miss.

294, 22 South. 803; Reese v. Hawthorn, 10 Grat. (Va.) 548; Carroll v. Bonham, 42 N. J. Eq. 625, 9 Atl. 371; In re Rutt's Estate, 200 Pa. 549, 50 Atl. 171; O'Neill v. Smith, 33 Md. 569. A more liberal view, however, of the meaning of this phrase has found favor in recent decisions of the Supreme Courts of Alabama, Tennessee, Illinois, and Kansas. Johnson v. Glasscock, 2 Ala. 218; Nolan v. Gardner, 7 Heisk. (Tenn.) 215; Harrington v. Stees, 82 Ill. 50, 25 Am. Rep. 290; Baird v. Baird, 70 Kan. 564, 79 Pac. 164, 68 L. R. A. 627.

Under the decisions last cited it is held that, where a verbal will is made in the last sickness, of which the testator dies, when such sickness has progressed to such a point that he expects death at any time, and realizes that he is liable to die there from at any time, and in view of such expected death, and as preparatory thereto, makes a will near to the time of his death, such will is made in the last sickness of the testator, although a sufficient time may have intervened between the making of the oral will and the death of the testator to have permitted the making of a written will. We are inclined to think that this rule is all that a fair interpretation of the statute requires, and that a sufficient precaution to prevent imposition and fraud on the estates of decedents is taken by the courts when strict proof is required by disinterested witnesses that the words spoken were intended as the last will of the decedent, and that the witnesses present, or some of them, were called upon to bear witness of such fact. We think that the evidence was probably sufficient to sustain the verdict of the jury on the question that the will offered for probate was made in the last sickness of the deceased.

In view of the conclusion to be reached, it is not necessary to determine the question whether real estate is a subject of devise by nuncupative will under our statute. The only question involved in this controversy at the present time, and now before us for adjudication, is whether or not the will offered in the county court shall be admitted to probate as the last will and testament of the deceased, and because of the interest of one of the attesting witnesses and the incompetency of the other, as before set out, there is not sufficient competent evidence to sustain the judgment, and we therefore recommend that the judgment of the district court be reversed, and the cause be remanded for further proceedings.

AMES and LETTON, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause is remanded for further proceedings."

See In re Miller's Estate, 47 Wash. 253, 91 Pac. 967, 125 Am. St. Rep. 904, 13 L. R. A. (N. S.) 1092 (1907), 3 Am. & Eng. Ann. Cas. 317, note. On rogatio testium, see Dawson's Appeal, 23 Wis. 69 (1868); Wiley's Estate, 187 Pa. 82, 40 Atl. 980, 67 Am. St. Rep. 569 (1898), 10 Am. & Eng. Ann. Cas. 1132, note. "A nuncupative will is where the testator, without any writing, declares his will or testament, as to personal estate, before two witnesses. In England there must be three witnesses. No case was produced

In re DAVIS' WILL.

(Supreme Court of Wisconsin, 1899. 103 Wis. 455, 79 N. W. 761.)

CASSODAY, C. J. It appears from the record: That August 18, 1896, at 5 o'clock a. m., Russell E. Davis died at his home in Milwaukee, leaving a nuncupative will spoken a few hours before, and during his last sickness, and which was thereupon reduced to writing, as follows: "I give unto my wife the income of my entire estate during her widowhood. If she shall remarry, she is to have one-third of my estate, and the other two-thirds is to go to my children. Upon the death of my wife, my whole estate is then to go to my children. I appoint my brother Oscar F. Davis my executor."

* *

*

The only question for consideration is whether the words so spoken, and constituting the nuncupative will of the deceased, were effectual to pass the income of the real estate to the widow. The statute declares, in effect, that the owner of "lands," or of any interest therein, "may devise and dispose of the same by last will and testament in writing; and all such estate not disposed of by will shall descend as the estate of an intestate," etc. Rev. St. § 2277. This includes the right to "devise" the homestead. Id. § 2280. The statute also declares that "the word 'land' or 'lands,' and the words 'real estate' and 'real property' shall be construed to include lands, tenements and hereditaments and all rights thereto and interests therein." Rev. St. § 4971, subd. 9; Id. § 2025. The statute also declares that every competent person, "may, by last will and testament in writing, bequeath and dispose of all his or her personal estate remaining at his or her decease," etc. Id. § 2281. All wills, except nuncupative wills, must be in writing, and executed as prescribed. Id. § 2282. And the statute further declares that "no nuncupative will shall be good when the estate bequeathed

where it was held that a decedent, who intended to make a written will, which, for any cause, was left incomplete or unfinished, died testate by nuncupation of the unfinished will. I have met with but one case, that of Offutt v. Offutt, 3 B. Mon. 162, 38 Am. Dec. 183, where it was ruled that a paper not perfected as a written will may be established as a nuncupative will, where its completion is prevented by the act of God. But this depended much on the peculiarity, or rather distinctive character, of the, Kentucky statute. There ought, therefore, to be present, in order

to constitute a nuncupative will, not only the animus testandi, but the mind and intent to nuncupate." Coulter J., in Porter's Appeal, 10 Pa. 254, 258, 259 (1849). See, also, Kennedy v. Douglas (N. C.) 66 S. E. 216 (1909).

In Re Miller's Estate, supra, it was held that upon the probate of a nuncupative will the court, in the exercise of a sound discretion, may permit the alleged will and its records to be amended to conform to what the facts show was the will of the testator.

On nuncupative wills, see 11 Prob. Rep. Ann. 13, note; 67 Am. St. Rep. 572, note; 20 Am. Dec. 44, note; 2 Prob. Rep. Ann. 171; 5 Am. Prob. Rep. 391, note; 8 L. R. A. 40, note; 9 L. R. A. 829, note; 3 Am. & Eng. Ann. Cas. 317, note; 10 Am. & Eng. Ann. Cas. 1132, note; 14 Am. & Eng. Ann. Cas. 1164. note.

8 Part only of the opinion is given