The opinion of the Court was delivered by
Lowrie, J.— The Court below followed Search’s Appeal in the admission of Mrs. Norman as a witness; but that case is based principally upon the illegitimate line of decisions begotten by the case of Steel v. Phœnix Ins. Co., 3 Binn. 306, which were all overruled by Post v. Avery, 5 W. & Ser. 510. The other cases relied on in Search’s Appeal contain the principles, that a legatee *299releasing (not assigning) his claim, may be a witness to prove the will: Vin. Ab. Tit. Evidence, F. PI. 53; and that legatees, or distributees, releasing all claim upon the executors or administrators, as to the matter in controversy, may be witnesses in actions to recover assets of the estate: 1 Ser. R. 275; 7 State Rep. 815; 13 Mass. 393; 9 Johns. 123. But these principles do not include the case of a devisee or legatee assigning his claim, in order to prove the will on which his claim depends; for no one is bound to accept a benefit thrown upon him by testacy or intestacy, and if he rejects it, he is without interest; whereas, one who assigns the benefit first accepts it, and then, if he wants to be a witness, gets clear of it for a reward proportioned to the distinctness of the testimony which he is expected to give. Our law does not punish champerty as a crime, but it does not encourage it, nor by its very rules expose people to the temptation of perjury or subornation of it.
In some states, a devise or bequest to a necessary witness is void; and such must be practically the case wherever interest produces incompetency. It is practically so, because the estate must be released from the claim before the legatee or devisee can be admitted to prove the will. If he does not release or renounce, he ought to be a party to the issue to test the validity of the will, and he cannot affect the issue by his testimony. The principle that was restored by Post v. Avery excludes Mrs.-Norman as a witness.
It has been further argued, that a nuncupative will is of no validity, unless there were two disinterested persons present at the making of it, who were then competent as witnesses: and as it may be supposed that the objection already discussed may in some way be overcome, we feel bound to consider the competency of Mrs. Norman in this aspect. The proposition is correct. The evidence of a verbal will is part of its very essence. The law makes it so, when it requires that some persons present shall be called upon by the testator to bear witness that such is his will, and that two of them must prove it. When the law requires persons to bear witness, it means that they shall be competent as witnesses. We make it speak nonsense, if we make it mean that the parties shall bear witness, a phraseology which, even in common parlance, is not free from absurdity. It is of great importance that there should be disinterested persons present at the making of such.wills, and the law intended to provide for this. It may be that the rule sometimes defeats verbal wills. But what of that ? People often die unintentionally intestate; but the general rule is too valuable to be endangered by accommodating it to isolated cases of hardship.
*300We are now to speak of the case on the supposition that such evidence as is here presented should legally appear. The law is very fully expounded in Priscilla Yarnall’s Will, 4 liawle 46, Gertrude Ericke’s Will, 4 W. & Ser. 360, and Werkheiser’s Will, 6 Id. 189; and we shall repeat as little of it as possible. The substance of the will, the intent to will, the call upon two or more disinterested persons to bear witness to it as a will, and the necessity of resorting to and depending upon a verbal will, must each and all appear with great clearness, in order to amount to proof. Here the intent was doubtful, the witnesses wanting, and the necessity not appearing, and the Court would have been justified in affirming the defendant’s second point, and would have been bound to do it, if, instead of a general point, the defendant had embraced in his point the substance of the evidence.
The general rule requiring all wills to be in writing, is intended to be as nearly universal as is possible, and the exception in favor of nuncupative wills must be very strictly administered. It is a partial substitute for a written will in cases of necessity. A necessity not arising from ignorance; for, besides the difficulty of proving or disproving ignorance, it is plain that the form of the exception is expected to be known, in order to be followed. A necessity not arising from mere carelessness, for that would be an abuse of the term. The necessity intended is that which arises when the testator is surprised by approaching death, and has not time to make the form of disposition intended by the general rule of law. Such was not this case. The decedent knew her end was approaching for some days before the making of the alleged will, and made no use of her time, though advised on the subject. And when she did declare her wishes, it seems that she was rather unwilling to be troubled about a will, or ignorant that one was necessary, than unable to make it. We think, therefore, that the Court ought to have affirmed the defendant’s fourth point.
We may be allowed here to endeavor to correct a matter of practice.
If there were a judgment for the plaintiff in this case, the record would give no valuable information as to the question decided. Every record ought to be complete in itself, and in framing an issue to try the validity of a nuncupative will, the will itself ought to be set out at length, and then a verdict and judgment sustaining it is conclusive of its validity and of its contents. Where the issue is raised by a declaration and plea, the will ought to be set out in the declaration.
Judgment reversed and a new trial awarded.