Bobby, (Robert Frazer, Jr.,) and the remainder of her property
was to be divided between herself (Priscilla) and him. This
witness proved some other matters which need not be repeated.
Isaac Thomas, who attended Priscilla E. Yarnall, as a physi-
cian during her last illness, was also examined on behalf of
Walker Yarnall, but his evidence is not material.
Henry Myers was then produced and examined on the part of
*those who opposed the probate of the alleged nuncupative r.,. -.-
will. The only part of his evidence at all material was, '
that he was the guardian of Robert Frazer, Jr., and having met
Walker Yarnall near his own house a day or two after the
funeral of Priscilla E. Yarnall, Walker, in answer to a question
put by the witness informed him that some part of the effects
which had been allotted to Priscilla on a division of the prop-
erty of Alice Frazer, were then at his house, and that Priscilla
had given them to him with a request that he would deliver
certain articles to different individuals among her friends. The
witness inquired of him whether she had made any disposition
of them in writing, to which he answered, that she had not.
Walker Yarnall at that time intimated no intention of setting
up a nuncupative will, and when he mentioned what she had
given to him, he said nothing about moneys or all her personal
57
54 SUPREME COURT [Philadelphia,
[Case of Priscilla E. Yarnall's will.]
property. A few days after, he served a citation on the witness,
as the guardian of Robert Frazer, to appear at the register's
office of Chester county. The witness said he knew there were
moneys in the hands of the executor of Alice Frazer, belonging
to Priscilla E. Yarnall, and that some of it had been taken out
of his hands, as the witness thought, improperly. The amount
which he supposed would be the portion of Priscilla was between
seven and eight hundred dollars.
John F. Frazer, a half-brother of Robert, was likewise ex-
amined in opposition to the alleged will. The tendency of his
evidence was principally to show the affection Priscilla enter-
tained for Robert, and that at her request, he had been brought
from school, at Pittsfield, Massachusetts, to see her during her
last illness.
Ann Barton, a half-sister of Robert Frazer, Jr., who was
examined on the same side, likewise gave evidence tending to
show the attachment of the deceased to her brother Robert, and
further stated, among other things, that she was at Walker Yar-
nall's on the Wednesday preceding the 19th of March, on a
visit to Priscilla. On that day, after inquiring about the pro-
gress of Robert at school, whether his income was sufficient to
defray the expenses of his education, &c,, she said she believed
her property went to Mr. Yarnall and her two cousins, Thom-
azine Pennell and Priscilla Wells. The witness replied that it
certainly did, but said, if you have anything to give, give it to
him, for his situation is so different from that of both the other
branches of the family that he may feel it. Priscilla evinced
great feeling on the occasion, and asked if she could make a
will. The witness told her she did not know, but thought she
could, and advised her to ask Mr. Myers who would be up the
next day. She then expressed a wish to see him, hoped he
would come and said she wished to leave Robert all she could
give him, adding she wished she could give him more, he was
nearer to her than any one else, but her father's property was
willed away. She also expressed a wish to see Dr. Barton, as
well as Mr. Myers, not professionally, as the witness thought
but about her affairs.
In conclusion, the counsel of Walker Yarnall, examined as a
r^f-r-i witness *to support the alleged will, Joseph Parry, who
' testified that he lived on a farm belonging to Priscilla E.
Yarnall, and that she had told him to mind what her uncle Yar-
nall said to him respecting the place, and not anybody else if
any one else was displeased, not to mind that ; if he only pleased
him, he would please her, for she wished him to do all her busi-
ness, although she had a guardian. She then told the witness
she thought she had not been well treated by her mother in her
58
Jan. 28, 1833.] OF PENNSYLVANIA. 55
[Case of Priscilla E. Yarnall's will.]
will ; all the money she had got by her (Priscilla's) grandfather,
she had given to little Bobby, and full half the money she had
given to him, she had made on her (Priscilla's) place ; adding,
that she thought the Frazer family had got pretty well of her
place and her already, and she thought they were about done
ever getting any more.
The cause was argued in this court by Dillingham and Chaun-
oey for the appellant, and by Bell, for the appellee.
Arguments for the appellant : The contending parties are,
on the one hand, an uncle of the testatrix, on the paternal
side, from which the property came, and on the other, 'a mater-
nal half-brother, who besides his share of his father's estate, has
already received a considerable portion of the estate which came
from her father. The whole tenor of the evidence, shows a de-
cided aversion on her part to the claims of her brother's family,
and her attachment to her maternal uncle, as well as her sense
of the justice of his succeeding to the property which she derived
from her father. After leaving school, she went to his house as
her home. She left school about the middle of January, 1831,
and about three weeks afterwards, was placed under the care of
a physician, who pronounced her case desperate. After having
been confined to her bed and given up all hopes of recovery, she
made the nuncupative will offered for probate. That Walker
Yarnall's house was her home, and that it was her intention to
dispose of her property in his favour, are facts which the evi-
dence places beyond a doubt. On the 15th of March, aecoid-
ing to the testimony of Elizabeth Black, she expressed a wish to
give to him all her personal property. On the 16th, she was
visited by Mrs. Barton, the half-sister of Robert Fraser, Jr.,
who urged her to make a will in his favour. On the 17th, she
inquired of Mary James whether she could make a will, and
repeated her desire to leave all her personal property to Walker
Yarnall ; Mary James dissuaded her from making a will, but,
suggested a. substitute. On the 18th, she said she wished to
give all she had to her uncle Walker, with certain exceptions,
and requested Mary James to remember it. Elizabeth Black
was passing and repassing during the conversation, and heard
her say this to Mary James, and afterwards she too, was re-
quested by Priscilla to remember it.
The question then is, were these words thus proved by two
witnesses, spoken by the deceased as testamentary ? To deter-
mine this question, it will be necessary to inquire into the mean-
ing of the *terms will and testament. In several cases r*(- fi -i
they are indiscriminately used, and signify " the testifying '
or declaring of the mind." The animus disponendi, is the only
59
56 SUPREME COURT [Philadelphia,
[Case of Priscilla E. Yarnall's will.]
essential particular. Swinb. on Wills, 2, 3, 12, 13. See also, 7
Ba. Ab. (Wils. Ed.) 299, 300 ; Wills and Testaments, A. ; 2 Bl.
Com. 499. A nuncupative will is synonymous with a verbal
will, Swinb. 51. What is chiefly required to constitute such a
will is, that the testator should name his executor, and declare
his mind by word of mouth, without writing before witnesses ;
no precise form of words is required, Swinb. 336. Here the de-
ceased did declare her mind plainly by word of mouth, before
witnesses, as to the disposal of her property after her death.
The objections made in the court below to the validity of the
alleged will, were 1. That the witnesses were not at the same
time requested to take notice that what she declared was her
will, 2. That her declarations were not made in articulom oriis.
The act of assembly of 1705, sec. 3, Purd. Dig. 876, which is
modelled after the Stat. 29 Ch. 2, c. 3, s. 19, requires that a
nuncupative will shall be proved by two witnesses, who were
present at the making thereof, and that it shall 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 M r as
his will, or to that effect. It further requires that such nuncu-
pative will, be made in the lime of the last sickness of the de-
ceased. The rogatio testium, was in this case complete. Two
witnesses, Mary James and Elizabeth Black were present on the
18th, when the testatio mentis was m-ade ; both prove the testa-
mentary words spoken at the same time, and Mary James testi-
fies that she at the same time, bade her remember how she had
left or disposed of her property, which is to the same effect, as
requesting her to bear witness that such was her will. Thus the
terms of the act were literally complied with. But it does not
require that both the witnesses should be requested to bear wit-
ness at the same time, nor that their attestation should be simul-
taneous. No case has decided that this is necessary, and it is
not analogous to what is required in the case of written wills.
Ever since that statute of wills, it has been decided both in
England and this country, that the attestation of the witnesses
need not be simultaneous. 1 Roberts on Wills, 131 ; Cook v.
Parsons, Prec. in Ch. 185; Jones v. Lake, 2 Atk. 176. This
directly contradicts the provisions of the civil law which requires
the publication or solemnization of the will to be uno adus con-
textu, that it should be signed, published, and attested, simul d
semel, 1 Roberts on Wills, 131, note 2 ; Ib. 136, note 6. See
also Swinb. part 4, sec. 26, 27. The policy of the civil law in
respect to wills, was in all respects more strict than that of the
common and statute law of England, and in Pennsylvania, it is
still less strict than in England. Form and solemnity as to wills
are now dispensed with, and if the animus testandi, be fullv proved.
60
Jan. 28, 1833.] OF PENNSYLVANIA. 56
[Case of Priscilla E. Yarnall's will.]
it is enough. A mere indorsement on a note, " I give this note
to A.," may be proved as a will. 7 Ba. Ab. 301, Wills, A. In
Pennsylvania, it is not necessary that a will *should be r*c 7 -i
signed, sealed, witnessed, or published, or that it should '
be in the handwriting of the testator. Hight v. Wilson, 1 Dull.
94 ; Rossetter v. Simmons, 6 Serg. & Rawle, 452.
Assuming that the testatio mentis has been proved by the re-
quisite number of witnesses, the next step towards the establish-
ment of the alleged nuncupative will in question, is to show that
it was made " in the time of the last sickness of the deceased."
Is it meant that the person making testamentary declarations,
must be in extremis ? The construction put upon the words of
the act by the court below is artificial and constrained, and was
adopted in submission to the opinion of Chancellor Kent, in the
case of Prince v. Hazelton, 20 Johns. R. 502, in which he was
misled by his feelings and prejudices, and misled with him a
majority of the Court of Errors of New York. The facts of
the present case in relation to this point are, that the deceased,
on the 18th of March, made her will, and died on the 27lh of
the same month. Her case had been previously pronounced by
her physician hopeless. Her friends were aware of her situation,
and she was fully aware of it herself. To no one did she -ex-
press an expectation that she should recover after the 15th of
March. Her will was thus made emphatically in the time of her
last sickness, and made " for fear that death or want of memory
or speech should surprise her, that she should be prevented if
she stayed the writing of her testament ; wherefore, she desired
her friends and neighbours to bear witness of her will, and de-
clared the same presently before them." 7 Ba. Ab. 305, Wills
and Testaments, D. The words of the act, "in the time of the
last sickness," are so remarkable as to contradict, by any fair
reasoning, the construction put upon them. There are three
things to be observed in regard to the case of Prince v . Hazelton
which tend greatly to weaken its authority. 1. It is a leading
case unsupported by a single precedent since the statute of
Charles II. 2. It utterly fails in the attempt to find a technical
meaning for the words of the act in the definitions and descrip-
tions of nuncupative wills by elementary writers. 3. It pro-
ceeds in part upon the erroneous assumption of a similar prin-
ciple in the case of a donatio causa mortis, and abounds in false
reasoning. It is to be observed likewise that Judge Spencer
assigns special reasons for his opinion, which are not applicable
to the present case, and Judge Woodward dissents totis riribux.
That case can only be considered as a precedent for such as are
exactly analogous to it. Before giving his opinion on the law,
the Chancellor had come to the conclusion "that the will was
61
57 SUPREME COURT [Philadelphia,
[Case of Priscilla E. Yarnall's will.]
evidently the production of fraud and perjury," in which Judge
Platt agreed with him. "It was made in the middle of the day,
when the alleged testator was quite comfortable and far from the
apprehension of death." Even the correctness of the Chancellor's
definition of a donatio causa mortis, may be questioned. That it
can only be tolerated when the party making it is in extremis,
has been held by many not to be good law. 1 Roberts on Wills,
10, note. Spencer's opinion is expressly founded upon this
r*^Q-] reason, "that it appeared from all the *evidence in the
' oase, that when the alleged will was made, he did not
think himself, nor did any other person think him to be in any
immediate danger of dying, and there was ample opportunity to
make a will in writing." In the case of Priscilla E. Yarnall,
the reverse of this was the truth. Besides, her will was actually
published again on the 27th of March, only half an hour before
she died. Mary James and Elizabeth Black, both say that she
called the attention of all present to the manner in which she
had disposed of her property. The very words, " I bid you to
bear witness that such is my will," may not have been used, but
the manner in which she repeated her intentions to all present, in
connection with her last words, must be considered as equivalent
to an express request to take notice of her will. She positively
and distinctly referred to her will at this time, in the presence
of two persons who had previously heard her declare it, and
thus with her last words requested them to take notice of it.
The counsel for the appellant, besides the authorities already
referred to, cited Perkins, sec. 467; Swinb. part 1, sec. 12; 6
Wood, 474; Orph. Leg. sec. 12, 13.
Arguments for the appellee. The alleged will is bad,
1. Because it is not proved by the requisite number of wit-
nesses.
2. Because it was not made during the last sickness of the
deceased.
3. Because the witnesses do not agree as to what the will is.
4. Because the animus testandi does not sufficiently appear.
1. Nuncupative wills were known to the common law prior to
the statute 32 Hen. 8. During the unlettered ages they were
of frequent occurrence, and it would seem, from subsequent
enactments, gave rise to numerous frauds and perjuries. It
was to correct this evil as far as possible, that the Statute of
Frauds and Perjuries was enacted. St. 29, Ch. 2, 6, 3 ; 7 Ba.
Ab. 337 ; 2 Bla. Com. 500. From this statute our act of as-
sembly of 1705, was copied, almost literally, except that it is
satisfied with two witnesses, while the English statute requires
three, (See 2 Phillimore, 191, 194.) In both these acts, the fol-
62
Jon. 28, 1833.] OF PENNSYLVANIA. 58
[Case of Priscilla E. YarnalPs will.]
lowing provision is to be found, viz. : "that no nuncupative will
skall be good," &c., " that is not proved by two or more wit-
nesses, who 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, bear witness, that such
was his will," &c. Two witnesses at least, must be present at the
time the alleged will was made, and in this respect only our act
differs from the English statute which requires three. The words
of the act are so clear as not to require the aid of authority to
give them a construction, nevertheless as this position was
combatted in the court below, it may be proper to cite some
authorities in support of it. It is not enough if one witness hear
the will at one time, and another at another time. The wit-
nesses must all be present together at the time the testamentary
declarations are made. Dr. Chalmer's Case, 7 Ba. Ab. 339 ; 1
*Eq. Ca. Ab. 403, 404. The position that the witnesses r^Kq-i
need not be present at the same time,, derives no sup- '
port from a supposed analogy between nuncupative and written
wills. They are essentially different. In the case of a will of
lauds, the statute does not require the testator to sign the in-
strument in the presence of the witnesses. 7 Ba. Ab. 306, 308 ;
1 Eq. Ca. Ab. A. 403. But our act of assembly expressly re-
quires, that a nuncupative will shall be declared in the pres-
ence of the witnesses, and that the testator should bid the per-
sons present, or some of them, take notice. On no occasion
were testamentary declarations made by Priscilla E. Yarnall, in
the presence of two witnesses at one time. They were not made
in the conversation proved by Elizabeth Black two weeks before
her death, when she said she wished her uncle Yarnall to have
all the personal property she could dispose of. They were made
in the presence of only one witness, and it is not pretended that
they constitute the will. Nor were such declarations made on
the night of the 16th of March, when, according to Elizabeth
Black, she repeated what she had said before, and added that
she wished the witness to have her bed, &c. This conversation
is liable to the same objection as the preceding one ; nor could
the alleged will have been made on the 17th, when she told
Mary James that she had property there which she wished
Walker Yarnall to have. Only one witness was present on that
occasion. That these conversations were not intended as testa-
mentary dispositions is evident from her asking Mary James, on
the 18th, if she thought she could make a will. Aware of the
difficulty he has to encounter, the appellant, in one of the papers
filed, has taken the 18th and 19th, and in the other the 17th
and 18th, as the days on which the will was made, and by
tacking together the loose conversations, no two of which agree,
63
59 SUPREME COURT [Philadelphia,
[Case of Priscilla E. Yarnall's will.]
he attempts to make out a testamentary disposition. If such a
disposition was not made on the 18th of March, 1831, it was
not made at all. On that day there were tw r o conversations ;
one during the day with Mary James ; the other at night with
Elizabeth Black, and although Elizabeth Black says she heard
some part of the conversation addressed to Mary James, yet she
heard it only in detached parts as she was passing backwards and
forwards at the time and engaged in various matters about the
house. At the conversation on the evening of the 18th, with
Elizabeth Black, no one was present but Priscilla and herself;
up to this time, then, no two witnesses were present at any one
conversation. But it is said that on the 27th of March, there
were two witnesses present at what is called a republication of
the will. A republication only takes place where the will has
been revoked by act of law or of the party, 7 Ba. Ab. 320.
There can be no republication of a nuncupative will except by
a repetition of all the words and formalities necessary to make
the will itself. To say that in the present instance, a republi-
cation took place, is to make a will by reference to that which
never had any existence as a will. And what w r as said on the 27th,
cannot be set up as a will, standing by itself, because testament-
r*fin~l ar 7 *words are wanting. 1 Eq. Ca. Ab. 403; Ba. Ab.
' 338, 339. Instead of appealing to the witnesses, and
calling on them to take notice of her will, she refers to the lega-
tee and his wife as knowing the dispositions she had made of
her property, which proves that Mary James and Elizabeth
Black were not considered by her as witnesses to her will. How
could they know what she had said to Walker Yarnall and his
wife? Another fatal objection to the alleged will is, that the
witnesses do not agree even in substance, as to the alleged tes-
tamentary declarations, and there is a material difference be-
tween the dispositions said to have been made on the 17th, and
those said to have been made on the 18th. (The counsel here
referred to the evidence in support of his allegation. The rea-
son why the law requires the presence of more than one witness
is to guard, as far as possible, against the frailty of human
memory, and this case affords a singular illustration of the wis-
dom of its provisions.
2. The alleged will was not made in the last sickness of the
deceased. A nuncupative will, prior to statute 29th Ch. 2, is
described to be a will by word of mouth, made lest death should
overtake the testator, if he should wait until it is reduced to
writing. 7 Ba, Ab. 305 ; Swinb. part 1, sec. 12, page 58 ;
part 7, sec. 1 2, page 520. To be effectual, it must be made in
extremis. The only instance in which favour is shown to such
a disposition of property, is when the testator is surprised by
64
Jan. 28, 1833.] OF PENNSYLVANIA. 60
[Case of Priscilla E. Yarnall's will.]
sudden and violent sickness, 2 Bl. Cora. 500, 501. It may be
doubted whether nuncupation is allowable in any case of linger-
ing disease, where, while the party is warned of approaching
dissolution, time is given for preparation. This construction has
been given to the New York statute on this subject, which is
similar to ours. In the case of Prince v. Hazeltou, 20 Johns.
502, in which all the authorities are collected, and the subject
fully considered, the alleged testator had been sick six weeks.
The alleged will was made on the llth of April, 1820, and the
testator died on the 17th of the same month, six days after, and
the will was not admitted to probate. The disease of Priscilla
E. Yarnall, was of a lingering character, a pulmonary consump-
tion. She had been confined nine or ten weeks, during the
greater part of which, she was perfectly capable of making a
will. Until a very late period of her life, she did not despair
of recovery. The alleged will was made on the 18th, and she
did not die until the 27th of March. On the 18th she was cer-
tainly not in extremis, and if she really wished to make a testa-
mentary disposition of her property, there was nothing to pre-
vent her doing it in writing.
3. The proof differs as to what the alleged will really was,
supposing the other difficulties to be out of the way. (The evi-
dence was here examined and commented on by the counsel, and
the alleged inconsistencies in it pointed out.)
4. The animus testandi does not sufficiently appear. The in-
tention to bequeath, must be distinctly shown. Loose words are
not sufficient. 2 Bl. Com. 501 ; Swinb. part 7, section 13, page
520, 521. *On the 16th of March, she consulted Mrs. ,-*,-,
Barton, about her power to make a will. On the 18th, L
she consulted Mary James, who thought she could not make one.
She wished to see Dr. Barton and Mr. Myers on the subject of
her affairs, and on the 18th, she expressed a wish to give, &c.
With these doubts on her mind, it is impossible she could have
supposed she was making a complete testament, when the con-
versations took place, which have been given in evidence. If
she knew what a nuncupative will was, and thought she had made
one, and had called on witnesses to attest it, she would not on
the 27th have referred to Walker Yarnall and his wife as the
depositories of her views in relation to her property. If she
intended to dispose of anything, she intended to make a donatio
causa mortis of the articles in the house, and this was incom-
plete for want of delivery. It is impossible she could have
intended to give her whole estate to her uncle. He was wealthy
and without children, and did not stand in need of it ; while her
brother Robert, though a member of an opulent family, was
poor. She was attached to him, said he was nearer to her than
VOL. iv. 5 65
61 SUPREME COURT [Phihtddphia,