Act of March 3, 1819—January 1, 1820. R. C. ch. 104. person aged eighteen years or upwards, being of sound mind, and not a married woman, shall have power, at his or her will and pleasure, by last will and testament in writing, to bequeath all the property, right, title and interest in possession, or in action present or future, vested or contingent, which he or she hath, or at the time of his or death shall have, of, in, or to goods or chattels, credits or other choses in action, or any other personal estate whatever, so as such last will and testament be signed by the testator, or by some other person in his or her presence, and by his or her request or direction; and moreover, if not wholly written by himself or herself, be attested by two or more credible witnesses, in his or her presence. And no will or testament affecting the personalty, except nuncupative wills, and the wills of soldiers in actual military service, or of mariners or seamen being at sea, shall be valid, unless made in pursuance of the provisions of this act. But every nuncupative will, or the will of any soldier in actual military service, or any mariner or seaman being at sea, may be made hereafter in the manner now allowed by law. Nothing in this act contained shall be so construed as to authorize any one to make any will or testament in derogation of the rights of creditors, or of wie : dows renouncing the wills of their husbands in the manner now allowed by law.t Act of March 4-1 May, 1835, Ses. Acts 1834-5, c. 60, p. 43. All wills of personalty, other than nuncupative wills, hereafter made, shall be exe cuted and attested in the same manner as wills of real estate. Act of Feb. 20, 1840, c. 57, § 2, p. 50.] 8. § 7. No nuncupative will shall be established, unless it be made in the time of the last sickness(j) of the deceased, at his or her' habitation, or where he or she' hath resided for ten days next preceding, except where the deceased is taken sick(k) from home, and dies before he or she' returns to such habitation; nor, where the value exceeds thirty dollars, unless it be proved by two(7) witnesses, that the testator 'or testatrix' called on some per + See case of Elcock's will, 4 M'Cord, 39. (j) "Last sickness," what?-See this question much discussed in the recent case of Prince v. Hazleton et ux. (in error) Nov. 1822, 20 Johns. R. 502-523. Kent, Ch. having reviewed the authorities on the subject, said, upon the strength of so much authority, I feel myself warranted in concluding, that a nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. The last sickness, in the purview of the statute of Charles 2, which we have copied [and so have we, in this particular,] has been always understood (for so I infer from the cases cited) to apply to the last extremity mentioned in the books, and it never was meant to uphold these wills, made when there was no immediate apprehension of death, and no inability to reduce the will to writing. In this opinion, Spencer, C. J. and Platt, J. and a large majority of the court concurred. Woodworth, J. dissented, holding, that the obvious import of the words "last sickness" is, the sickness immediately preceding the death of the testator, without reference to any precise period of the disease, or any particular apprehensions the testator may be under, as to his approaching dissolution. A donatio mortis causa, what? See Walter v. Hodge, 2 Swanst. 97, 106, note (b) &e. and authorities cited, and Wells, adm'r v. Tucker et ux. 3 Binney, 366; Duffield v. Hicks, 1 Bligh's Rep. N. S. 497; Chitty's Prac. 100, 104, &c.; Edwards v. Jones, 7 Simons, 325; 1 Mylne & Craig, 226. (k) A person was very unwell when he left home, but was taken dangerously ill, and died, at the house where his nuncupative will was made, before the expiration of ten days: Held, to be within this exception. The act of Oct. 1748, c. 5, § 9, 5 Stat. Larg. 457, has the words "surprised or taken sick where the will was made." The word surprised was left out of this act. See the remarks of Roane, J. on this omission. Marks et ux. v. Bryant et ux. 4 H. & M. 91, 99100. (1) In the case of Weedon v. Bartlett et al. 6 Munf. 123, the proof was, by one witness, that on the 16th Jan. 1815, he was at the decedent's habitation, during his last sickness, and that the decedent said, under the impression that he was not long for this world, "that it was his wish that T. W. should heir all of his property."-By another witness, it was proved, that on 15th Jan. 1815-during the same sickness, and at the same place, "he heard the decedent say the same words, who told him (the witness) to take Act of March 3, 1819-January 1, 1820. R. C. ch. 104. son present to take notice, or bear testimony, that such is his or her' will, or words of the like import.(m) Oct. 1748, c. 5, 5 Stat. Larg. 456; 1785, c. 61, 12 Stat. Larg. 141; 29 Car. 2, c. 3, § 19. 9. § 8. After six months have elapsed from the time of speaking the pretended testamentary words, no testimony shall be received to prove a nuncupative will, unless the testimony, or the substance thereof, shall have been committed to writing within six days after making the will. Ibid. 10. § 9. No will in writing, or any devise therein of chattels, (n) shall be revoked by a subsequent will, codicil or declaration, unless the same be in writing. 1748, c. 5; 1785, c. 61, 12 Stat. Larg. 141. 11. § 10. Any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his chattels, as he might heretofore have done.(o) Ibid. 29 Car. 2, c. 3. 12. § 11. If any person shall subscribe his or her' name as a witness to a will, wherein any bequest is given to him or her,' if the will may be not otherwise proved, the bequest shall be void, and such witness shall be allowed and compellable to appear, and give testimony on the residue of the will, in like manner as if no such bequest had been made. But, if such witness would be entitled to any share of the estate of the testator' or testatrix' in case the will were not established, so much of his said shares shall be saved to him or her,' as shall not exceed the value of the legacy bequeathed to him 'or her.' 1785, c. 61, 12 Stat. Larg. 141; 25 Geo. 2, c. 6.(1) notice of what he said." Held by the court of appeals, not duly proved as a nuncupative will, by two witnesses, pursuant to this act. (m) Notes, taken down in the presence of the deceased, at his habitation, during his last sickness, from his dictation, with a view to have them formalized, but before that was done he became delirious; were received, on due proof, as a nuncupative will. Mason v. Dunman, 1 Munf. 456; Philips v. The Parish of St. Clements Danes, 1 Eq. Cas. Abr. 404. The statute enjoins several requisites the principal one is the rogatis testium; the calling upon persons to bear witness to the act: the words of the statute have always been strictly construed. See Bennett v. Jackson, 2 Phill. Rep. 190; Parsons v. Miller, Ibid. 194. In this case Sir Wm. Wynne held, that the act must originate with the party; that he must call on the persons present to bear testimony. Sir William could not hold in this case, qui facit per alium facit per se. "The stat. is to be taken strictly-it meant that persons should not get about the deceased and ask him questions; but that it should originate from himself;" where, therefore, the words were merely spoken in answer to questions put by persons standing around, the will was pronounced against. Lemann v. Bonsall, 1 Addams, 389. 'Tis essential to the validity of a nuncupative will, that it should appear that the deceased, at the time he spoke the alleged testamentary words, had a present intention to make his will, and spoke the words with such intention, and should distinctly indicate that intention by calling on persons present to take notice or bear testimony that suck is his will, or by saying or doing something tantamount in substance, indicating plainly, that the words spoken were designed to be testamentary. Winn v. Bob et al. paupers, 3 Leigh, 140. By the ecclesiastical law, which, as to proof of wills in courts of probate, is still our law, two witnesses are necessary to prove wills of chattels. Redford's adm'r v. Peggy & al. 6 Rand. 316, judges Green and Cabell expressed the opinion that one uncontradicted and unimpeached witness would be sufficient to prove an olograph will of lands under our statute, and on the principle, that omne majus continet in se minus, a testament might be so proved. Ib. (n) A will of chattels may be revoked by a testamentary writing, though it be neither written nor signed by the testator, provided it be approved by him. A testamentary writing thus authenticated is a good will as to personals. Glasscock v. Smither et al. 1 Call, 479; Cogbill v. Cogbill et al. 2 H. & M. 467, 522; Bates v. Holman, 3 H. & M. 502, 515. Notwithstanding the intimations of the judges in Redford's adm'r v. Peggy et al. 6 Rand. 316, the court recently, (Feb. 1835,) determined, that before the late act of assembly, March 4, 1835, c. 60, p. 43, Ses. Acts, a testament of personal estate might be well proved by a single witness. Worsham's adm'r v. Worsham's ex'or, 5 Leigh, 589. (0) See Swinb. on Last Wills and Testaments, part 1, sec. 14. (1) See Lees v. Summersgille, 17 Ves. jun. 508; Emanuel v. Constable, 3 Russell, 436; Brett v. Brett, 3 Addams, 210. Act of March 3, 1819-January 1, 1820. R. C. ch. 104. 13. § 12. The several superior courts of law, county and corporation courts, shall have power to hear and determine all causes, matters, suits and controversies testamentary, arising within their respective jurisdictions, and to examine and take the proof of wills,† and grant certificates thereof, according to the methods and rules following, that is to say: If any testator 'or testatrix' shall have a mansion house, or known place of residence, his 'or her' will shall be proved in the superior court of law of the county, or in the court of the county or corporation, wherein such mansion house, or place of residence is; if he or she' have no place of residence, and lands be devised in the will, it shall be proved in the superior court of law of the county, or in the court of the county or corporation, wherein the lands lie, or in one of them, where there shall be lands in several counties; and if he or she' hath no such known place of residence, and there be no lands devised, then the will may be proved, either in the superior court of law of the county, or i the court of the county or corporation, where the testator or testatrix' shall die, or that wherein his or her' estate, or the greater part thereof shall be:(3) or such will may, in any case, be proved in the general court. [See tit. JUDIC. (Gen. Ct.) No. 11.](2) Nov. 1645, 1 Stat. Larg. 302; March 1657-8, act 30, 1 Stat. Larg. 426; Ibid. act 102, Ibid. 479; June 1676, aci 11, 2 Stat. Larg. 359; Nov. 1711, c. 2, 4 Stat. Larg. 12; Oct. 1742, c. 5, 5 Stat. Larg. 454; 1785, c. 61, 12 Stat. Larg. 142. 14. 19. If the general court, or any superior court of law, county or corporation court, having jurisdiction as aforesaid, shall be informed, that any person hath the will of a testator or testatrix in his or her custody, such court | It is not essential that a will should be proved in a court of probat, in order to give it validity as a will of lands. Bagwell et al. v. Elliott et ux. 2 Rand. 190. [See M'Cormick v. Sullivant, 10 Wheat. 192.] Yet, it is necessary, when the fact is in issue, that he who claims under it should shew by proof in the cause in which the claim is asserted, that it was executed with the solemnities required by the laws of Virginia, to give it the effect of a will of lands. This fact may be shewn by producing a proper probat in a court of probat in Virginia; or, if the will has not been so proved by any other competent evidence, according to the course of the common law. Green, J. in Morrison v. Campbell, 2 Rand. 217, 18. (3) A resident of Kentucky dies intestate there, having no estate in Virginia, but a claim on this commonwealth for money. Held, the circuit court of Henrico county, wherein is the seat of government, has jurisdiction to grant administration of such decedent's estate. The place where a debt constituting the whole estate must be demanded and paid or prosecuted, and where all the documentary proofs constituting the foundation of the claim are found, is that in which the estate is. The Com. v. Hudgin, 2 Leigh, 248. (2) The grant of administration by a court having no jurisdiction, (as when the intestate dies out of the commonwealth, and has no residence, property, &c. in the city of Richmond, and the court of hustings thereof grant administration,) is a mere nullity. See Robert Robinson's case, gen'l ct. Nov. T. 1828; and Markham's case, gen'l ct. June T. 1830, 2 Leigh, 719. When a valid administration has been granted by a court having jurisdiction of the subject, 'tis exclusive, and administration de bonis non, must be granted by the same court. Ex parte Lyons, gen'l ct. Nov. T. 1830, 2 Leigh, 761. A county or corporation court grants administration of the estate of a foreigner who died abroad, and who had no residence in the county or corporation at the time of his death, and had no estate of any kind there, so that in truth the state of facts is not such as to give the court jurisdiction to grant administration in the particular case, according to the provisions of this section of the statute, yet held, that such a grant of administration is not a void but only a voidable act, and therefore rightful acts of, and fair dealings with, the administrator, consummated before his administration is revoked or superseded, cannot be impeached. Fisher v. Bassett et al. 9 Leigh, 119. Quare whether, if a county or corporation court grant administration of a decedent's estate in a case where the true state of facts is not such as to give such court jurisdiction to grant administration, and yet such grant is only voidable, not void, the general court can make a valid grant of administration until the former irregular grant by the county or corporation court shall have been duly revoked or superseded? Ibid. 2 * Act of March 3, 1819-January 1, 1820. R. C. ch. 104. may summon such person, and, by a proper process, compel him' or her' to produce the same. Oct. 1748, c. 5, § 16, 5 Stat. Larg. 458; 1785, c. 61, 12 Stat. Larg. 143; 1792, c. 92, R. C. 15. § 18. No nuncupative will shall be proved within fourteen days after the death of the testator or testatrix,' nor until the widow, if any, of the testator, and next of kin, have been summoned to contest the same, if they please. Ibid. and 29 Car. 2, c. 3, § 21. 16. 13. When any will shall be exhibited to be proved, the court having jurisdiction as aforesaid, may proceed immediately (p) to receive the probat thereof, and grant a certificate of such probat. If, however, any person interested, (q) shall, within seven years afterwards, appear, and by his or her' bill in chancery, contest the validity of the will, an issue shall be made up, whether the writing produced, be the will of the testator or testatrix' or not, which shall be tried by a jury, whose verdict shall be final between the parties: saving to the court, a power of granting a new trial for good cause, as in other trials; but, no such party appearing within that time, the probat shall be forever binding :(b) saving, also, to infants, femes covert, and persons absent from the state, or non compos mentis, the like period after the removal of their respective disabilities. Nov. 1711, c. 2, 4 Stat. Larg. 13; Sept. 1744, c. 6, 5 Stat. Larg. 231; Oct. 1748, c. 5, 5 Stat. Larg. 455; 1785, c. 61, 12 Stat. Larg. 142. 17. § 14. In all such trials by jury, the certificate of the oath of the witnesses, at the time of the first probat, shall be admitted as evidence, to have such weight as the jury shall think it deserves. (p) A court of probat occupies the place of a jury, as to facts, and ought to find all proper inferences from facts proved. Where the court refuse to admit a will to record, on the ground of defect of testimony, and it appears before them that the desired evidence may probably be procured if time is allowed, they ought to allow such farther time, even though judgment may have been pronounced, the judgment being still in their power. Smith v. Jones, 6 Rand. 33. And see Boyd et al. v. Cook, ex'or, 3 Leigh, 32. In a question concerning the validity of a The court sitting as a court of probat, may (4) After the probat, any person interested 113 Ibid. the probat, may file a bill as aforesaid, on the After a will is admitted to probat, the va- As to the probat of a will destroyed in testator's lifetime, see Trevelyan v. Trevelyan, 1 Phill. R. 149. On the trial of an issue devisarit vel non, the rule is not universal that all the attesting witnesses must be examined at law. It seems the rule does not apply where the bill is filed by the heir at law to restrain the devisee from setting up a legal estate as a bar to an ejectment. Tatham v. Wright, 2 Rus. & Mylne, 1; 6 Cond. Ch. R. 366. In every case of an appeal in a controversy concerning the probat of a will, the original paper exhibited for probat must be brought before the appellate court, and 'tis not in the power of either party to dispense with its production; if it is not produced the appeal will be dismissed. Marks et ux. v. Bryant et ux. 4 H. & M. 91. (b) No person appearing within the term of seven years, to contest the probat of a will, it cannot be thereafter called in question. Nalle's reps. v. Fenwick, 4 Rand. 585; Vaughan v. Doe dem. Green, 1 Leigh, 287. "The words incire det between the brow lets (-) are no pact of this decision ofcter Food & Gundnie - quod nee Act of March 24-June 1, 1838. Ses. Acts 1838, ch. 92. 171. § 1. When any person shall offer, or intend to offer for probat any last will and testament, it shall be lawful for him to obtain from the clerk of the circuit superior court having jurisdiction thereof, a summons or summonses directed to the sheriff or other officer of any county or corporation, requiring him to summon any other person or persons who may be interested in the question of the probat thereof, to appear at the next term of such court, to shew cause, if any there be, why the said will or testament should not be admitted to probat; and the circuit superior court in which a will or testament shall be offered, or into which the question of probat may be removed by an appeal or otherwise, shall have power to cause all persons who may be interested in the probat thereof, to be summoned to appear on some day to be appointed for the purpose aforesaid; and if any such person have no known place of residence within this commonwealth, an order shall be made requir ing him or her to appear at the time so appointed, and the same shall be published for not less than eight weeks in some newspaper to be designated by the court; if any person so interested be an infant, or of unsound mind, it shall be the duty of the court to appoint a guardian ad litem as in other cases; but if any infant be above the age of fourteen years, and be a resident of this state, he or she shall be personally summoned as before directed. 172. § 2. When all the parties interested shall have been thus summoned or notified, by order of publication to appear, or shall otherwise appear as parties in any motion for the probat of any will or testament, the court shall proceed to hear the same, and if any person interested therein shall require an issue of devisavit vel non to be tried by a jury, the court shall order the same and shall have power to make all proper orders for the purpose, to change the same and grant new trials, and to render final sentence or judgment; but if the parties who appear, shall consent to waive the same, then the court shall proceed in the manner now required by law in such cases, to decide the question of probat. In every such proceeding, the said courts shall have power to require all testamentary papers of the same testator to be produced, so as to decide finally what may be the true last will of the testator, or whether there be any will or testament. 173. § 3. Every sentence or final order made as aforesaid, shall be a bar to any proceeding by bill in equity to impeach or to establish any will or testament which may have been so admitted to probat, or rejected, unless the plaintiff or plaintiffs in equity, shall have such grounds of equity as would give to the courts thereof, jurisdiction over other judgments at law: Saving, however, to infants, for one year after they become of age, and to persons residing without the commonwealth, or not having been actually summoned, as before directed, two years after such final sentence or order; within which periods, it shall be lawful for him, her or them, to institute any such suit in the same manner, and with the like effect as if this act had never passed. 174. 4. Appeals may be had from any sentence or order under the provisions of this act, allowing or overruling the probat of a will or testament, in the same manner as in other cases: Provided, That it shall not be necessary to record the testimony relating to any will, as to which an issue shall have been tried, as is herein before directed: And provided, That nothing in this act contained shall be so construed as to prevent the probat of last wills and testaments in the manner heretofore prescribed by law, or to invalidate any such probat, although none of the par es interested shall have been summon ed or notified to appear. 175. § 5. When a subscribing witness to any last will or testament shall be unable from sickness, age or other infirmity, to attend the court, whether infe |