Opinion
02-20-1818
Weeden v. Bartlett and Others
A writing purporting to be the nuncupative Will of Chilton Wilson deceased, was exhibited on the 3d day of July 1815, to the County Court of Richmond, for probate, by Thomas Weeden, and contested by Isaac Bartlett and others.
It was as follows: " On Monday evening the 16th day of January 1815, I William Morriss was at Mr. Chilton Wilson's, and he was sick, but perfectly in his senses, but from his feelings thought that he was not long for this world; and he said that, if it was to please God to take him, it was his wish that Thomas Weeden should heir all of his property, and move to it and keep it all together: he also said that he had rather his estate should be sunk in the sea than for William Wilson, or any of Elisha Bartlett's heirs ever to possess any of his estate, or Daniel Wilson's heirs either."
" On Sunday the 15th, I Jonathan Bowing heard him say the same words, and told me to take notice of what he said. He died on the 17th of January, and we William Morriss and Jonathan Bowing was the two last white people that ever spoke to him that we know of. William Morriss, Jonathan W. X Bowing." Richmond County, to wit: This day came before me a Justice of the Peace for the County aforesaid, the within subscribers William Morriss and Jonathan Bowing, and made oath to the truth of the within statement. Given under my hand this 17th day of February 1815. Carter Mitchell."
The County Court, " upon examination of the Witnesses, and the argument of the parties by their Attornies being heard," " was of opinion that the said writing was the Will of the deceased, and ordered it to be established as such, the personal property of the said deceased amounting to more than thirty dollars."
OPINION
Upon an appeal, the Superior Court reversed this order, because it did not appear to the said Court that the heirs of the said Wilson had been previously summoned to shew cause against the probate of the said Will.
A Supersedeas to the Judgment of reversal was granted; and the following was the opinion of this Court.
The Court, not deciding absolutely that the judgment of the Superior Court, reversing that of the County Court, is correct as to the reason therein alleged, is of opinion that, upon the merits, the same is not erroneous; the nuncupative Will not being duly proved, as such, by two witnesses pursuant to the provisions of the Act of Assembly in such case made and provided. And, on this ground, the judgment of the said Superior Court is affirmed.
Note. See Edition of 1794, 1803 and 1814, ch. 92 § 5; R. Code of 1819, c. 104, § 7. Vol. 1st. p. 377.