Castro

Mr. Justice Terry concurred.

This was a proceeding in the Probate Court to set aside and annul a will. The testator died in 1831; the personal property was divided under the provisions of the will, and the heirs remained on the land, and acquiesced in it until some time in 1852, a period of over twenty years.

*160 Upon the motion to dismiss, which has been made, it is only necessary to say that this is the second time this case has been before us, and the time which it has been suspended on appeal is not to be computed; in other words the appeal prevents the'running of the statute.

By the civil law, wills are divided into solemn and privileged* the solemn will is divided into the nuncupative or open will, and the sealed or written will. The privileged will corresponds with what is known with us as the nuncupative will. The will in question belongs to what was known at common law as the nuncupative will, because formerly published viva voce; and although the custom of publication has long since ceased, it still retains the name, between which and the solemn will there is no difference in modern times, except that the latter is sealed up and the attestation made on the back of…