A paper writing was propounded in the Court below, to be admitted to probate as a nuncupative will, upon the following agreed statement of facts, to-wit: “ That the testatrix was a native of the State of Georgia, where she resided until she was of age; that in the year 1866, she went to Berlin, in Germany, for the purpose of completing her education, with the intention of returning to Georgia when her education should be completed, and remained in Berlin eighteen months; that, being in bad health, she went to Lipp Springs, in Germany, and on the 3d day of September, 1868, she was informed by her physician that she had the consumption, and could not live long; was then confined to her room and bed, and on the 3d day of October, 1868, she died, having never recovered from said sickness; that on the 3d day of Septem*379ber, 1868, she invited to her room one Spanken, and one Sauerland, and one Gertrude Schlosser, who was her female attendant and nurse, and who was present, in the same room, during the entire transaction, and then and there, in the hearing and presence of the said three witnesses, she expressed her purpose to make her will, and then and there she dictated the several items in'said paper, purporting to be her will, and the same were then and there reduced to writing by the said Spanken and Sauerland, who signed the said paper as-official witnesses, and the said testatrix then and there signed her name to the same. All of which testamentary dispositions appear upon the said paper writing; that the said paper writing speaks the truth, with the recitals therein, in reference to the facts therein recited; that said paper writing was executed, in substance and form, according to the laws of force in that part of Germany where the same was executed, and, by the laws of that country, would be a good testamentary disposition of real and personal property, located in that country; that said will has been proven and admitted to record, according to the laws of that country; that the property conveyed by said will, except the specific bequests in said paper mentioned, consists of lands and railroad stocks, located in the State of Georgia.” On the trial of the case in the Could below, the Court charged the jury, “that if they believed, from the testimony in the case, the testatrix, in her life-time, made said paper writing and signed her name to the same, then the said paper writing was not a good nuncupative will, and if the jury so believe, they must find for the caveators;” to which charge the propounder of the will excepted. A nuncupative will, as defined by the law, is one which depends merely upon oral evidence, being declared by the testatrix in extremis, before at least three competent witnesses, and afterwards reduced to writing, within thirty days, under the provisions of our Code, after the speaking of the same. The paper propounded, if it had been attested and subscribed in the presence of the testatrix, by three witnesses, *380would have been a good written will, under the law of this State. The fact that it was attested and subscribed by only two witnesses does not make it, in the sense of the law, a nuncupative will, although made during the last sickness of the testatrix, thirty days before her death; the more especially as it does not appear from the evidence in the record that, at the time the paper writing was signed by the testatrix, she was in extremis, or that the legal execution of the written paper was prevented by any sudden surprise or providential cause. If, after the will had been written, as dictated by the testatrix, and signed by her, and before the requisite number of witnesses could have subscribed the same, she had suddenly died, then the paper might have been propounded as a nuneupative will, notwithstanding she had signed the paper; for its legal execution would have been prevented by the act of God.
But, inasmuch as the facts stated in the record, and admitted to be true (and there being no conflicting evidence) do not, in my judgment, shew that the testatrix, at the time she signed the paper propounded, was in the sense of the law, in extremis, so as to authorize the same to be established as her nuncupative will under the law applicable to that class of wills, I am of the opinion that the judgment of the Court below should be affirmed, notwithstanding the Court charged the jury that if the testatrix in her lifetime made said writing and signed her name to the same, it was not a good nuncupative will; the verdict is right under the law applicable to the facts stated in the record; that is to say, the statement of facts admitted to be true, (there being no conflicting evidence) are not sufficient in law, to authorize the paper writing propounded to be established as the nuncupative will of the testatrix, although the charge of the Court on the point of signing the will may have been too restrictive, if the admitted facts would have authorized the jury to have found a different verdict, had the charge of the Court been otherwise upon that point in the case.
Let the judgment of the Court below be affirmed.