4 Bradf. 154 | N.Y. Sur. Ct. | 1856
The deceased, who was a cook on board of the steamship Hermann, departed this life at sea on the third of February last, while on the way from Bremen to Southampton. Two days before, when the vessel was lying at the wharf at Bremen, he told Frederick Pearson that he wished the money belonging to him, on deposit in the Seamen’s Savings Bank in the city of New York, to be sent to his mother, residing at Glasgow in Scotland. This declaration was made in his last sickness, when the decedent expected to die, and with the intention of making a posthumous disposition of his property. Is this a good nuncupative will ?
A nuncupative will, so termed, a nunacupando, that is, from naming an executor by word of mouth, is a verbal testamentary declaration or disposition. (Swinburne, pt. 1, § 12, pl. 1; Godolph, pt. 1, ch. 4, § 6.) By the common law it was as valid in respect to personal estate, as a written testament. A will could not only be made by word of mouth, but the most solemn instrument in writing might be revoked orally. In a rude and uncultivated age, to have required a written will would have been a great hardship, but with the growth and progress of letters, the reason for permitting a verbal testament diminished in force, until finally an effort to establish such a will by means of gross fraud and perjury, gave rise to the provisions of the statute of 29, Charles II., passed in 1676, termed the Statute of Frauds. (Cole vs. Mordaunt, in 4 Vesey, 196.)
Originally, nuncupative wills were valid, though not made in sickness. Afterwards, when writing became general, verbal dispositions were regarded with disfavor, and ulti
The only nuncupative wills now allowed are those made by soldiers and sailors. It appears from the preface to the life of Sir Leoline Jenkins, that he claimed the merit, at the time of the preparation of the statute of frauds, of having obtained for the soldiers of the English army, the full benefit of the. testamentary privileges of the Roman army. The Roman soldier was indulged with very peculiar rights and immunities, in the way of exemption from the usual rules in respect to .wills. Inter arma silent, leges—in the camp and on the battle-field the testamentary law was silent. , Amid the excitement and the perils of warfare, the forms prescribed by law for the execution of a will were dispensed with, so that the soldier might declare his last wishes, by word of mouth; or if, wounded, he wrote with his blood on his shield,
. This was the foundation of those privileges of soldiers, in regard to nuncupative wills, which were allowed wherever the civil law prevailed, and which have been very generally adopted among civilized nations, (Domat., Pt. 2, Book iii., tit. 1, Sec. 1, 3; John Voet, Com. Pand., lib. 29, tit. 1; Duranton, Tom. 9, liv. 3, tit. 2; Toullier, Tom. 5, liv. 3, tit. 2.) In France, the Ordonnance de la marine of 1681, first gave special privileges to wills made at sea; and the ordinance of 1735 regulated the celebration of the military testament. The Code Civil has also adopted definite rules in regard to wills made at séa, in time of pestilence, or by soldiers in service. (Art. 981-8). In Holland, when commerce began to be extended to distant voyages, the question arose, whether wills made at sea were entitled to any peculiar immunity; and some jurists affirmed that they should be taken as military testaments. The matter was finally resolved in favor of their exemption, in case of persons sailing to, or returning from the Indies, by the ordinances of the West India Company, in 1672 and 1675. (Voet. Com. Pand., lib. 29, tit. 1.) In England, by the statute of frauds, passed about the same time, the full benefit of the privilege was given, without restriction, to all soldiers and sailors in actual service ; and, as I have already stated, this liberal rule has continued to the present day.
Nuncupative wills not being regulated by statute, as to
As well because the wills of soldiers and mariners were excepted from the operation of the provisions of the statute of frauds, as for the reason and ground of the exception, and the peculiar character of the military testament, it was never held requisite that these nuncupations should be made during the last sickness. Nor has any particular mode been prescribed in respect to the manner of making the testament. The very essence of the privilege consists in the absence of all ceremonies as legal requisites; or, as Merlin states the proposition—“ Their form was properly to have no form.” It is true, the Roman law required two witnesses; this, however, did not relate to the essence of the act, but only to the proof. In respect to evidence, we do not follow the civil or the canon law; no particular number of witnesses is required to verify an act judicially, and all the court demands, is to be satisfied by sufficient evidence, as to the substance of the last testamentary request or declaration of the deceased. This ascertained, the law holds it sacred, and carries it into effect, with as much favor and regard as would be paid to the most formal instrument, executed with every legal solemnity. The proof in this case shows that the decedent, in prospect of death, declared a wish that the deposit in the Savings Bank should be given to his mother. There must, therefore, be a decree of probate establishing that nuncupative disposition.