The Judges pronounced their opinions.
JUDGE TUCKER,after stating the case. The witnesses not being positive that all the notes taken by the Srst witness, in the presence of the testator, and by his direction, were read over to him, and approved by him, after they were committed to writing,* I am of opinion that the Court did right in considering those notes as too imperfect to be established as a written will; and the draught, when completed, not being read to him, nor approved by him, must be considered liable to the same objection. But, although those notes were not, for the reasons just mentioned, to be considered as a written will, I think the court judged very properly in admitting them to record, as containing the substance of a nuncupative will, made by the decedent, in ex-tremis, at his own house, and in his proper senses.
*JUDGE ROANE.I am clearly of the same opinion. The notes taken by the bed-side of the dying man were a good nuncupative will; but, as it does not appear clearly whether the Court below meant to establish the notes, or the draught of a will, I think it would be proper to express it to be the intention of this Court to establish the notes; especially as there is a slight difference between them and the draught.
JUDGE FLEMING.This is a plain case, that the notes are a good nuncupative will, better authenticated than any I have seen. But the notes ought to be established, instead of the draught; there being a slight difference between the two papers, merely as to the disposal of the money arising from the sale of certain oxen.
Judgment unanimously affirmed; and the Clerk (to prevent misconceptions) directed to enter the notes verbatim in the order-book.
See 2 Bl. Com. 502.