W. Aylott died in the city of Galveston, possessed in his own right of several lots of ground, some of which were improved, and upon which he lived. When he died he was about sixty-five years old. He had no family, and left as his heirs, brothers.
The appellants Lewis lived in Aylott’s house with him at the time of his death. He made no written will; and this suit was brought by appellants to establish and have admitted to probate what they style the nuncupative will of said Aylott. The heirs of Aylott appeared and contested the application.
There was a verdict in favor of Lewis, but the court refused to order the will probated, upon the ground that the will related to nothing but real estate specifically named; and as real property could not be devised by a nuncupative will, judgment was entered for the contestants, from which they have appealed.
Appellants Lewis introduced themselves as witnesses to. .prove the will, to which the contestants objected on the ground, “ 1, The entire devise being to them) they are not proper persons to establish the same; 2, they are man and *197wife; and, 3, they are parties to the record, and have an interest in the event of the suit.” These objections were overruled, and appellees excepted.
The two important questions for our consideration are, whether real property can he devised by nuncupative will, and whether Lewis and wife were competent witnesses to establish the will. The first of these questions is the only one discussed by counsel, and on this point the discussion by appellants’ counsel in their brief is very thorough and interesting.
The title to real property would not pass by will at common law. The first time it was effected in England it was done by an evasion of the common-law rule under the statute called the “Statute of "Uses.” (Wigram on Wills, 35; Williams on Real Property, by Rawl., 59.)
The statutes of 32 and 34 of Henry the VIII were the first authority to dispose of real property by will, and these statutes were restrictive in their character, and it was not until the restoration of Charles the H that the feudal tenures were abolished and the right of devising freehold lands became complete and universal.
The practice or custom of malting nuncupative wills grew up and was allowed from the necessity of the case, and had its origin among seamen, soldiers, and persons usually possessed of small fortunes, and, generally, they have been restricted as to the amount of property they were allowed to pass.
Can a nuncupative will pass title to real estate lands?
In opposition to what seems to be the general rule, we are cited to the case of Lessees of Gillis v. Weller. (10 Ohio, 463.) This is a short case, and does not bear evidence of very great consideration.
It seems that the territorial act of 1795 conferred the right, in Ohio, of malting nuncupative wills, and that it was construed to confer the power of passing real and personal estate.
*198In 1805 the act of 1795 was repealed, and by this repealing act personal property alone could pass by nuncupative will.
Again, in 1808, the act of 1805 was repealed, and this last act contains no limitation or restriction as to the character of property that might be conveyed by verbal will.
The learned judge says: “ The first section of this act provides, however, that every male person shall have power by last will and testament in writing to dispose of both real and personal estate.
“If personal property were not here enumerated it might be contended, perhaps, with some plausibility, that a verbal will was not intended to pass réalty.” The force of this reasoning^ is not very perceptible, and it is very likely that the distinguished judge who delivered that opinion was more or less influenced by the fact that the act which prohibited the disposition of real property by nuncupative will had been repealed. This case stands alone, so far as. our researches have gone, and it is opposed by the courts of Kentucky, Florida, Korth Carolina, Pennsylvania, and all the text writers to which we have access. (Worland v. Dill, 9 Fla., 45; Smith v. Smith, 64 N. C., 52; Palmer v. Palmer, 2 Dana, 390; McCans v. Board, 1 Dana, 340.)
Is there anything in our statute to aid appellants on this point?
The first section of the act of February 5, 1840, on the subject of conveyancing, (Paschal’s Dig., art. 997,) declares “ that no estate of inheritance or freehold, or for a term of more than five years, in lands and tenements, shall be conveyed from one to another unless the conveyance be declared by writing, sealed and delivered.”
There are but two general modes of-acquiring title to property: one by descent, and one by purchase. (Williams on Real Property; Rawle, 107; 4 Kent’s Comm., 415.)
A party taking by devise is deemed to take by purchase; and while we do not ordinarily, in speaking of the transmission of title to property, when using the word conveying, in-*199elude property acquired by devise, still, we may refer to this statute to show the general policy of the State.
By reference to the provisions of the act referred to, it will be seen that the Legislature had the subject of wills in view, as the word devise is used.
As we have seen, at common law lands could not be devised ; and it is believed in all the States testamentary power is a subject of statutory regulation.
As in the case cited from 10th Ohio it is contended that as by will all persons (males) are allowed by writing to make testamentary disposition of their property, real and personal, and that in the clause governing nuncupative wills there is no restriction as to the character of the property that may be disposed of, it follows that lands may be transmitted by verbal will.
We cannot adopt this reasoning. We must suppose that when the provision with reference to nuncupative wills was adopted, that the Legislature meant to provide for the disposition of that species of property that aforetime might be conveyed by verbal will.
This view of the law is strengthened by the fact that we have adopted the common law, which is our rule of civil conduct when not controlled by statute. (Paschal’s Big., art. 977.)
The statutes of wills and the act adopting the common law were passed at the same session of Congress, and if not repugnant to each other they must both stand.
It will be seen too that our statute concerning conveyancing was also passed at the same session.
In view of this legislation, and the fact that nuncupative wills are usually restricted in their operation to chattels, and the further consideration that such wills are not favored in any portion of Christendom, we think the conclusion is irresistible that real property cannot pass by nuncupative will. Nuncupative wills and death-bed gifts, donatio causa mortis, in most of their features and characteristics, are alike. A *200recovery of the donor, in each case, revokes the gift or bequest, and each operates on personal property only. (Meach v. Meach, 24 Vi, 593.)
It is insisted, that although the will might not be sufficient to pass the title to the property in controversy, still appellants were entitled to have the will probated, and that they are entitled to costs.
We are all, however, of opinion that appellants are not entitled to have the will probated.
Two of the principal witnesses to prove the will are appellants Lewis and wife. In the language of the court in 20 Johnson, 502, and in Mitchell v. Vickers, 20 Tex., 377, the proof to admit a nuncupative will to probate must be of the clearest and most convincing character.
In Prince v. Hazleton, 20 Johnson, 502, the chancellor uses this language: “ There is another consideration that imparts to this subject of nuncupative wills a momentous character, and ought to incline us to give them as little countenance as possible. „
“As soon as a nuncupative will is made, it becomes the interest of the legatees that the party’s sickness should prove to be bis last' sickness, for if he recovers, the will of course falls to the ground. Hot so with a written will.” “In cases of nuncupative wills the legacies operate as bounties upon the death of the testator.”
We do not, however, place our decision on the insufficiency of the testimony. We have made these extracts merely to show with what disfavor these wills are looked upon by courts.
We are of opinion that the two devisees, Lewis and wife, were improperly allowed to testify.
• As before remarked, this branch of the case is not argued or noticed -in briefs of either party, and we are left to conjecture the grounds upon which they were allowed to give their evidence.
The act of 19th May, 1871, reads as follows: “ 1st. In the courts of this State there shall be no exclusion of any witness *201on account of color, nor, in civil actions, because he is a party to or interested in the issue tried. 2d. In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.” (Paschal’s Dig, 6826-7.)
It is presumed that the' court below was controlled by this statute. It is so comprehensive in its terms as that by a fan-construction it will embrace the proof of wills.
If it does, will it not be too broad to meet the .requirements of appellants ? The better view seems to be that the act was only intended to apply to ordinary suits in the courts of the State, and that it cannot be so construed as to apply to ex parte proceedings or proof of wills, deeds, mortgages, &c.
It is true that when the heir or intended party hears of the application to probate a will, and appears, the proceeding may result as in this case in an issue being formed and a regular trial, but this cannot alter the construction we are inclined to give to this statute.
Many of the provisions of the statute of wills of 1840 are embraced in the act of 1870, concerning estates. There may be a question whether the act of 1840 could be superseded by an act having for its title “An act prescribing the mode of proceeding in the District Court in matters of probate,” but we give no opinion on this point. There are some important provisions in the -wills act of 1840 that are not embraced in tire act of 1870, and are believed to be still in force.
The first section (Paschal’s Dig., art. 5361) prescribes who may make wills and what they may dispose of; and the tenth section, (Paschal’s Dig., art. 5370,) prescribes that a bequest to any subscribing witness to a will shall be void, and the party shall be required to appear and prove up the will. These provisions (and there may be others) are believed to be still in force.
*202Nothing but the clearest and most indisputable language can ever be held to repeal the law which renders a devisee or legatee incompetent to prove a will.
The act of 1840 required wills to be proved by credible witnesses; which means competent witnesses.
Every dictate of humanity and the daily lessons of life warn and teach us the folly and impropriety of placing not only the fortunes but the lives of the sick and the aged, and, indeed, all the afflicted, at the mercy and avarice of the corrupt and the vicious. That a code of laws should allow devisees to go before a clerk, or even a judge, maybe, on an ex parte proceeding, and prove up a will giving to strangers an estate, leaving kindred and family behind without provision, cannot be readily admitted, and would deserve universal condemnation.
But does not the second section of the act, under which it is claimed that appellants could prove up this will, stand in the way ? Here the heirs are the parties. Ts the statute not as effectually a bar to their testifying as if the contestant was an administrator, or any other trustee holding for the benefit of the heirs and creditors? The prohibition contained in the second section was not intended to protect an executor, administrator, or guardian, although they are named. It was intended to protect the parties beneficially interested— heirs and creditors.
In proving up a will, especially a nuncupative will, the witnesses, interested parties in this case, could speak of nothing else but “ statements by or transactions with the deceased;” and without extending these remarks, we hold that real estate cannot be devised by nuncupative will, and that a party taking as devisee or legatee under a will cannot prove the will, either written or verbal, without annulling the devise or bequest. The judgment is affirmed.
Affirmed.