delivered the opinion of this court.
Nuncupative wills, though tolerated, are by ao means favorites of the law. Independent of the statute of frauds altogether, the factum of a nuncupative will requires to be proved by evidence more strict and stringent, than that of a written one in every single particular. This is requisite in consideration of the facilities with which frauds in setting up nuncupative wills are obviously attended. Facilities which absolutely require to be counteracted, by courts insisting on the strictest proof as to the facta of such alleged wills. Hence the testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation, must appear, in the case of a nuncupative will, by the clearest and most indisputable testimony. See Lemarna vs. Bonsall, 2 Eng. Eccl. Rep. 147. 1 Williams on Executors, 62, and the case of Priscilla E. Yarnall's will, 4 Rawle’s Rep. 62. A will made by interrogatories is valid; but undoubtedly, whenever a will is so made, the court must be more upon its guard against importunity, more jealous of capacity, and more strict in requiring proof of spontaniety and volition, than it would be in an ordinary *199case. 1 Eng. Eccl. Rep. 32, Green vs. Skipworth and others. According to these sound and well-established principles, let us proceed to the examination of the case before us: first, premising that no bequests having been made by the alleged nuncupative will, it is not subject to the operation of the statute of frauds in relation to such testaments ; nor to that of the act of Assembly of 1810, cbap. 34. The only effect of the will, if admitted to probat, and it were competent to effectuate the supposed intent of the testator, would be to secure to the appellant the appointment of executor or administrator of the deceased, and the guardianship of his only child. The latter object, however, could not be accomplished; a written will being made indispensible for such a purpose, by the statute of 12 Car. 2, chap. 24.
To the admission to probat of the will in question, a number of objections were interposed in the orphans court, most of which we deem it unnecessary to examine. That on which we think the decision of the cause mainly depends, as far as such objections are concerned, is the allegation of the appellees, that the will, attempted to be proved, was not the voluntary act and free will of the deceased, but he was induced to speak of his affairs, as mentioned in said paper, by the suggestion of others, only a short time before his death, and when he was not in a mental or physical condition to make a will* or execute a valid deed or contract; and that in the situation in which he was placed, and the circumstances connected with the execution of said paper, he was too weak to transact business, or to resist the suggestions that were made to him, of the necessity of making a will; and said words, attributed to the' deceased, were used by him in consequence of the undue influence of said suggestions. To establish the will, the appellant produced four witnesses, being the only persons, except himself, who appear to have been with the deceased at the time it is alleged to have been made. Two of those were the attending physicians; one a person sent for by the appellant, and the fourth an accidental visitor. The orphans’ court proceeded to take their testimony; and as respects the sanity of *200the decedent, what have they testified ? The first witness Dr. Sedwick, after detailing what he alleged as having occurred on the morning of the making of Coberth’s testament, and of his death, proeeéds thus“this deponent further" says, that the reason why he mentioned this subject to Hezekiah Coberth was; his having heard him, during his illness, express a wish to" make some arrangement respecting his affairs; that they weré not at that time, as he wished; and that he wished that they, Dr. L. L. Weems and himself, should do something for him, as he wished to recover and recruit to make some arrangements; and that at the time he Hezekiah Coberth made these declarations, he was perfectly sane; and that the aforementioned words,purporting to be his last will, were spoken by Mr. Hezekiah Coberth in the presence of him the deponent, Dr. L. L. Weems, James M. Sollers and James Williams; and that they were Spoken in his last illnésá, and in his own house and place of fesidence; and that he this deponent was called to Mr. Heze-Mah Coberth, on Saturday previous to his death; and that the words, expressive of a disposition to make some arrangement, were spoken a part on Monday, and a part on Tuésday or Wednesday.” The deceased died on Thursday morning, as proved by Dr. Sedwick. He gives no testimony as to the" sanity of the mind of the decedent, at the time of the nuncupation in question, but confines his evidence on this subject, to its state some one, two or three days before. Dr. Weems states that, “on Thursday morning he found him [Coberth,} in a dying condition, but perfectly rational.” James M. Sollers says, “he believes that Mr. Hezekiah Coberth was rational” at the time of the alleged nuncupation. But what degree of rationality was meant by the witnéss ? "Whether a mere exemption from delirium, or such a dégree of intellect as would enable its possessor to make a valid deed or contract, ór a reasonable or sensible disposition of his property, does not appear.James Williams, the remaining witness, gives no testimony as’ to the sanity of the deceased. When then we advert to the fact, that the want of mental capacity in the deceased, was a ground of objection to the probat; that, independently of *201such objection, it was the duly of the appellant to prove such •capacity by the clearest and most indisputable testimony; that of the four witnesses to the will, but two of them testify as to such capacity; that he who does so most strongly, says, that when he visited Coherth, on the morning of the alleged nuncupation, (which was the morning of his death,) he found him in a dying condition; that all the facts given in evidence by the witnesses as to the conduct of the deceased, and those around him, during the time of the alleged nuncupation, leave upon the mind doubts as to the mental capacity of the testator. We think the orphans court were right, upon that ground, in refusing to admit to probat the proffered nuncupative will. We think, too, looking to all the proof in the cause, and the manner in which, by interrogatories, the alleged nuncupation was drawn from the decedent, that there was not such proof of sponlaniety, and of the animus testandi as is indispensable to the validity of such a will. The only reported case, which we have met with of a will made by interrogatories to the testator, is that of Green vs. Skipworth and others, 1 Eng. Eccl. Rep. 32: at which it is only necessary to glance for a moment, to see that its admission to prohat stands upon grounds infinitely stronger than could be urged in favor of that now under consideration. To grant probat to the will now before us, would, in our opinion, establish a precedent fraught with the most dangerous ¡tendency.
THE DECREE OF THE ORPHAN'S COURT IS AFFIRMED WITH COSTS.