(after stating the case.) The statute (The Code, § 2148) prescribes how wills shall be admitted to probate, and as to nuncupative wills it provides, among other things, as follows: “ No nuncupative will shall be proved by the witnesses after six months from the making thereof, unless it was put in writing within ten days from such making, nor shall it be proved till citation has been first issued pr publication been made for six weeks in some newspaper published in the State to call in the widow and next of kin to contest such will, if they think proper.” It seems to us that a just interpretation of this provision is, that if such will shall be put in writing within ten days next after it was made, it may be proved by the witnesses thereof either before or after the lapse of six months next after the making thereof, because the will being in writing with the sanction of the witnesses, their recollection as to what it was is helped and strengthened thereby, and they could the better be trusted to testify as to the making of the same, and what it was in-its detail, at any time within a reasonable period. The putting of the will in writing is intended to serve such purpose. But if it is not so put in writing, it shall not be proved by the witnesses after the lapse of that time; that is, the proof of the witnesses must be taken within that period — their recollection, unaided by such writing, shall not be trusted for a *577longer period than six months — they shall cease to be witnesses, certainly to make the first proof, if not examined within that time.
The will, as proved by the tvitnesses, shall not be deemed proved and admitted to probate “ till a 'citation has first been issued or publication made for six weeks in some newspaper published in the State to call in the widow and next of kin to contest such will, if they think proper.” It will be observed that it is not required that the will shall not be proved by the witnesses until the citation and notice provided for shall be made, but it shall not be proved — that is, proved in the sense of admitting it to probate at once — until citation shall be made, the purpose being to give the widow and next of kin opportunity to contest the will — the proof thereof by the witnesses thereof — if they shall see fit to do so. If this view is not correct, and if the witnesses of the will cannot be examined until after the citation shall be made, then it might turn out that the will could not be proven, although the propounder had taken steps long before the lapse of six months to prove it, because the citation could not be properly made, and thus the purpose of the statute w'ould, in a measure, be defeated.
Indeed, in case of a caveat of the will the proof thereof by the witnesses might — would almost necessarily — in the course of the litigation, be delayed greatly longer than six months. It is not contemplated by the statute that the proof of the will by the witnesses thereof shall be contested at the time of taking the proof — in the first instance; this is to be done by a caveat and proper contest of it. This is the ordinary course pursued in contesting wills. Hence the statute (The Code, § 2149) requires th&t “every Clerk of the Superior Court (the probate ofiScer) shall take in writing the proofs and examination of the witnesses touching the execution of a will, and he shall embody the substance of *578such proofs and examination, in case the will is admitted to probate, in his certificate of the probate thereof, which certificate must be recorded with the will. The proofs and examinations, as taken, must be filed in the office.” Etheridge v. Corprew, 3 Jones, 14.
The proceeding in the matter of the probate of a will is summary and in rem, and at first it is ordinarily ex parte, and the contest of it is begun by a caveat. (The Code, § 2158.) The purpose of the statute is not to prevent the examination of the witnesses of the will, after such lapse of six months, on the trial of the issue devisavit vel non in the course of a contest of it, but, as we have said, it is to require that they shall not be allowed to prove it in the first instance — when it is first presented for probate — after that time, unless it shall have been put in writing within ten days next after the making thereof.
In this case the alleged will was put in writing, presented to the Clerk of the Superior Court for probate, and it was proved by the witness thereof before him — that is, he took “ in writing the proofs and examination of the witnesses” in respect to the making of it, and made the order of citation— publication of notice — but he did not allow the will, as proved, admitted to probate, and ought not to have done so until the proper notice had been given. It was given, and thereupon the appellees objected that the witnesses had not proved the will within six months, as required by the .statute, and moved that the proceeding be dismissed.
The Clerk, improperly, so ordered. On appeal the Court below properly overruled the order of the Clerk, and directed that he proceed according to law in the matter of the probate. In this there is no error. The order appealed from must be affirmed, and the same carried into effect.
Affirmed.