39 Vt. 498 | Vt. | 1866
At the present term the opinion of the court was delivered by
The question in this case is whether the deelara-larations and requests of the deceased, Joseph P. Safford, to the witness, Frank A. Olmstead in respect to the disposition of his estate after his decease, should have effect as a valid testamentary disposition of his personal estate on the facts found by the county court. The ground upon which it is claimed that these declarations and requests were effectual as a nuncupative will is that, at the time when the same were made, the deceased was “ a soldier in actual military service,” within the meaning of the statute. It is settled by the findings of the county court that these declarations and requests were made by the deceased animo testandi, or with the intention of disposing of his property by will, and while he was m extremis, and conscious of the near approach of death ; and we think that these findings were fully justified by the evidence detailed in the bill of exceptions. * It also appears that the deceased died within two or three days after making these declarations and requests, and no question is made but that he was of full age, as well as of sound mind at the time of making them. If he was not then “a soldier in actual military service,” it is conceded that these declarations and requests would fall within the operation of the general provisions of the statute in respect to nuncupative wills, (Comp. Stat., p. 327, § 8 ; G-. S., p. 377, § 8,) and could not be established as a valid testamentary disposition of his personal estate.
It is unnecessary to consider whether the validity of a nuncupa-tive will made by “a soldier in actual military service” is affected by the fact that it was made when the soldier could not be regarded as being in extremis, because it appears that the deceased, at the time of making the alleged testamentary disposition of his property which is now in controversy was actually in extremis; but it is a necessary
At common law, previous to the Statute of Frauds, (29 Car. 2 c. 3,) a parol will, even of lands devisable, was good, and a written will might be revoked by parol. Rolfe, Widow v. Hampden, Knight, 1 Dyer’s Rep., 53, b. pl. 13 ; Brooke v. Warde, 3 ib., 310, b. pl. 81. Nuncupative wills were not forbidden by the Statute of Frauds, but
The words “m actual military service,” used in section 23 of the Statute of Frauds, and in the revised wills act of 1 Vict., ch. 26, § 11, received a full consideration in the case of Drummond v. Parish, 3 Curt. 522, (7 Eng. Eccl. Rep., 496, S. C.,) in which it was held that these words referred to and were intended to designate a service on an expedition, and that the privilege, as it respects the British soldier, was limited and confined to those soldiers only who are on that particular service. We are entirely satisfied with this interpretation of the statute, but what shall be considered as an expedition is, in some measure, a question of fact depending on the circumstances of the particular case, The deceased was a soldier belonging to a company and regiment which formed a part of the “ Army of the Potomac” in the recent war of the rebellion, and his company and regiment were unquestionably “in actual military service,” in the sense in which those words were interpreted in the case of Drummond v. Parish, on the 13th of September, 1862, when he made the declarations and requests which are relied on as being of a testamentary character in this case. He had been with his company and regiment through the battles of the peninsular campaign, and, in the latter part of the previous month of August, had been transferred with the entire “Army of the Potomac,” to the vicinity of Washington. The rebel forces, inspired by their successes on the Chickahominy and at
The judgment of the county court in favor of this alleged nun-cupative will of the deceased as a valid testamentary disposition of his personal estate is accordingly affirmed,,