dissented, but wrote out no opinion. His dissent, delivered from the bench, was as follows:
Where, at the request of a citizen and resident of Georgia, a young lady, who was temporarily in Prussia, a commission of its officials' was appointed by a Court of that country to take the “immediate deposition, or as it may be, reception of her last will,” one of which commission was designated as “the Counsellor” or “Judge” of said Court, and the other as “sworn Recorder of the minutes,” and said commission convened at her lodgings, examined her landlord as to her identity and the time of her stay with him, were then admitted to her room, where they examined into the state of her health, her mental condition, her residence, her condition in life, and received from her a confirmation of her having requested their appointment, and thereupon, she dictated to *386them, by word of mouth, her testamentary dispositions in detail, one other witness being present besides the said commission, and the whole of said proceedings were reduced to writing, headed, “ Proceedings held at the Lipp Springs Watering Place Hotel, September 3, 1868,” and were sigued, officially, by said “Recorder,” and by said “Counsellor” or “Judge” of said Court, and also by the testatrix, who was at the time confined to her bed, in a low condition, and had been informed by her physician that she did not have long to live, and who died, within a month of said sickness, and.said minutes were transmitted ,to said Court as a record thereof of the verbal dispositions of the testatrix:
Held, first, That on a trial before a jury of an issue formed upon the propounding of said will, as a nuncupative will, it was error in the Court to charge the jury that, if the testatrix signed the writing proposed to be set up, it could not be set up as a nuncupative will.
2. That whether the said will was made in the last sickness of the deceased, and whether the other requisites of the statute regulating nuncupative wills had been complied with, were questions of fact for the jury, and the Court having, by its charge withdrawn these facts from the jury, a new trial ought to be granted.