#### David Baylor et al. v. Mary A. Baylor et al.

Nuncupative will. — The court is of opinion the evidence contains all that is necessary to a valid nuncupative will, and therefore reverse the case.

Appeal from the Circuit Court of Clay county; the Hon. Wm. O. Jones, Judge, presiding.

Opinion filed October 6, 1881.

Messrs. Shaw & McGiltón, Hagle & Finch, Bell & Green, and Mr. J. C. Allen, for appellants;

in support of the will, cited Wier v. Chidester, 63 Ill. 453; Arnett v. Arnett, 27 Ill. 247; Harrington v. Stees, 82 Ill. 50 ; Kelly v. Kelly, 9 B. Mon. 554.

As to testamentary capacity: Yoe v. McCord, 74 Ill. 33; Carpenter v. Calvert, 83 Ill. 62; Rutherford v. Morris, 77 Ill. 397.

Mr. F. G. Cockrell, for appellees.

Per Curiam.

A majority of the court are of the opinion that the evidence in this record contains all that is necessary to a valid nuncupative will, and that there is no sufficient warrant for the verdict. As the testimony now before us, and perhaps other evidence on both sides, will be submitted to another jury, we forbear a further discussion of it. The instructions complained of, the first and sixth are perhaps subject to the criticism suggested by counsel, but as on the motion for new trial, certain points in writing were specified, and as this was not one of them, the objection cannot be made now. O. O. & F. R. R. Co. v. McMath, 91 Ill. 104.

The judgment will be reversed and cause remanded for another trial.

.Reversed and remanded.