*606 By the Court.
Benning, J.delivering the opinion.
If a person sign the writing, which he intends to be his; will, does the act of signing prevent the will from being a nuncupative will?
We think that it does. A mtncupative will is a will that is not in writing.
Swinburne says: A nuncupative testament is when the testator, without any writing, doth declare his will before a sufficient number of witnesses. 87. see id. 77. To the same ' effect, is the orphan’s legacy. Go'dolphin, 13. 6.
Coke says: “ Testamentum est duplex. 1. Inscriptis. 2„ Nuncupatwm, sett sine scriptis.”
Now it cannot be said of any deed, or bond, or promissory note, that is signed by the maker of it, that it is a deed, or a bond, or a promissory note, as the case may be, not in writing. On the contrary, it is to be said of every deed, bond,, or promissory note, that is signed by the maker of it, that it is a deed, or a bond, or a promissory note, as the case may be,. in writing.
And it must be true, that whatever may or may not be-said of a deed, or a bond, or a promissory note, in this respect, equally may or may not be said of a will, in this respect. It must be true, therefore, that it cannot be said of a will that is signed by the maker of it, that it is not a will in writing. Consequently, it cannot be said of such a will, that' it is a nuncupative will.
This is the conclusion to which we come; it is also that to which the Court below c.ame, for it refused to allow the-amendment.
We think, therefore, that its judgment ought to be affirmed»
Judgment affirmed.