In revising this decision, two main questions present themselves .for our consideration: First, did the words spoken by the deceased, on the Friday before his death, manifest with sufficient legal eertainty, that they were intended as his will; and secondly, were they spoken in that extremity in which alone the law authorizes a nuncupative will to he made. Toller, defines a will or testament to be “a legal declaration of a party’s intentions, which he directs to be performed, after his death.” . When this declaration is reduced to writing, with the ordinary solemnities, there remains no question as to the intent of the testator to make his will. And if I mistake not, an examination of the cases at common law, of the disposition of personal estates by testament, will shew that the Courts have, at all times, been particularly careful to see that the animus testandi was fully proven before they would establish a will. Hence, even the reducing of a man’s intention to writing, or directing it to be done, would not, if left incomplete, except under peculiar circumstances, be considered as his will; and the-policy of our law has been from the earliest ages, to favor written wills; one motive for which, no doubt was, that the design of the testator might be clearly exhibited. Even in the days of remote antiquity, when reading and writing were such rare accomplishments as to confer peculiar privileges, nuncupative wills were not established, except when made in extremis; and experience soon taught our forefathers,, that the license of the common law,, *368though narrowed to so small a compass, was still too' gr'éat for the good of society. The celebrated case of Coles v. Mordaunt, in the 28th of Charles II., in which it is re-' ported, that out of nine witnesses, sworn toproveanuncupative will, almost all were perjured, and Mrs. Coles, herself, guilty of subornation of perjury, manifested that the temptation was too strong for human nature, and led soon after to the salutary statute of the 29 th of Charles II, Which with but slight variations, lias been incorporated' into our code. The numerous precautions and requirements of this statute have almost, (to use the language of Maekstone,) brought nuncupative wills into entire disuse. Great particularity is necessary to establish them, and nothing is of more importance than a clear manifestation' of the animus testandi; therefore it is, that the statute requiresthat “the testator should call on the persons present' at the time of making such will, or some of them, to take notice,'or bear testimony, that such was his will, or to that effect.”
In the case before us, there was no particular Call on the witness to take notice, &c. but it is contended that it was to that effect. What the deceased said, was1 in answer' to a question put to him by the witness. This, of itself,does not prove that he had not the requisite animus testandi; but we are sustained by high authority in saying,that in such a case, the Court should be' more upon their' guard against importunity, more jealous of capacity, and-more strict to require evidence of clear intention, than in' ordinaiy cases; The facts shew, that in previous conversations, the deceased had expressed the same design to-leave his property to his brother James, which he did on the Friday before his death; and as there was nothing peculiar in his last expressions on the subject, it may be fairly argued, that though they, together with what he had before said, evinced the inclination of his mind as to the disposition of his property, yet, that he did not intend them as the declaration of his will. Had this been his design, it is both reasonable and natural to suppose, that he would have accompanied his expressions with words more' emphatic and unequivocal; and if wfe admit that he Was' conscious of the near approach of his dissolution, it is stranger still, that when the subject was brought to'his recollection, by the question of the witness, he did notavail himself of the few remaining moments, either'to have-his will written, or to express it with a plear and unambigu*369oils manner and intent. To me, it is evident, that though he did design to leave his property to his brother James; yet, either from a fluctuating state of mind, an unwillingness to do. an act which brought the contemplation Of death immediately before him, or deceived by a delusive hope of recovery, he did not make, or at any one time design to make his will, within either the words or spirit of the. statute» As to the second point, it is worthy of remark, that oitr statute adopts the words of the 29th of Charles II., that nuncupative wills must be made “in the time of the last sickness;” and these expressions, as appears by the case cited from 20th Johnson, 502, have been construed by the Courts to mean, in extremis. These latter expressions, as appears from the same authority, were understood by the writers before the 2 9th of Charles II, when applied to this subject, to mean the veriest extremity, when a man, in the words of Perkins, “lieth languishing for fear of sudden death, and dareth not to stay the writing of his testament.” Chancellor Kent sustains the same idea, by observing, that there is a strong analogy between these nuncupative wills, and a gift upon the death bed, or a donatio causa mortis, and these gifts, lie says, are defined in the Very terms of a proper nuncupative will. A dontitio Causa mortis, is where a man lies in extremity, or being surprised by sickness, and not having an opportunity of making his will, but lest he should die before he should make it; gives away personal property with hiS' own hands. ” Then, to apply these explanations of in extremis or last sickness, to the case at bar, the deceased had time, had he been so disposed, after his expressions referred to, to have procured the writing of his will; he had friends and all the ordinary facilities at hand; but he did not do it, or express a desire to have it done. He must then, either have been indisposed at the time to make his testament, or aroused by the perilous extremity of his condition; he would have evinced something of1 that hurried anxiety which fearful necssity seldom fails to produce. Nothing, however, of this is in proof, but a simple expression only, that if he should die, (implying at least some degree of doubt,) he Wished his brother James to have all his property. Upon the whole, I am well satisfied, that the indispensable requisite of the animus testandi is wanting in the ease, and that it is perhaps more than doubtful, whether the deceased, at the time of using the expressions recorded as his will, was in that. *370extremity of condition, which would authorize him to-ma]ce a nuncupative will. The decree then, dismissing ^lie bill, was erroneous and must be reversed, and this Court proceeding to render such decree as should have been made below, order, adjudge and decree, that said nuncupative will be vacated, and set aside and that Janies T. Sykes, the administrator, proceed to ' distribute the estate of said John Sykes, deceased, according to law.
Decree reversed and rendered.