Hammett v. Shanks

Bartol, C. J. delivered tlie opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore county, admitting to probate the nuncupative will of William D. Blaclristone deceased. Some of the witnesses by whom the nuncupation was proved, were legatees, and objection was made below to their competency; this objection does not appear to be urged in the brief of the appellant. Nor would it avail, since the decision in Estep vs. Morris, 38 Md., 417 , and in Harris vs. Pue, 39 Md., 535 , in which it was held that by the Acts of 1864 and 1868, a party who takes an interest under a will has been made a legal and competent witness to prove it.

There being no valid objection to the competency of the witnesses in this case, the only question upon the appeal, is whether their testimony is sufficient to establish the alleged nuncupation, as a valid unwritten will of Wm. D. Blackistone deceased. A careful examination of the testimony has brought us to the same conclusion which was reached by the Orphans’ Court, and in our opinion their order admitting the will to probate ought to be affirmed. The requisites to constitute a valid nuncupative will, under our Code, Art. 93, see. 306, have been clearly defined in Dorsey vs. Sheppard, 12 G. & J., 192 ; O’Neill vs. Smith, 33 Md., 569 , and Biddle vs. Biddle, 36 Md., 630 .

In those cases the alleged nuncupation was held to be unsupported by the proof. But the present case is dissimilar