12 Barb. 148 | N.Y. Sup. Ct. | 1851
By the Court,
The only question in this cause is upon the validity of the unwritten will of William L. Hubbard, referred to in the proceedings. The decree of the surrogate of the county of Suffolk, adjudged the will to be genuine and valid, admitted it to probate, and directed that letters of administration, with such will annexed, should issue to the appellant, Maria J. Hubbard. From this decree, the respondent, Elias Hubbard, appealed to the special term, where the decree of the surrogate was reversed for error of law, and the cause is now before the general term, upon appeal from the last mentioned order or decree. The deceased was the husband of the appellant, and the son of the respondent, and the will relates exclusively to personal property. He was at the time of his death the master of a coasting vessel called the Oregon, employed in the transportation of coal from the city of Philadelphia to one of the eastern ports. On the 5th of July, 1849, at nine o’clock in the forenoon, while the vessel with the cargo on board, was lying wind-bound at the mouth of Delaware bay, under the breakwater, and about a mile distant from the main land, and three miles from
A will is defined to be “ a declaration of the mind, either by word or writing, in disposing of an estate; and to take place after the death of the testator. It is in Latin called testamentum, i. e. testatio mentis, the witness of a man’s mind; and to devise by testament is to speak by a man’s will, what his mind is, to have done after his death.” (7 Bac. Ab. 299, tit. Wills and Testaments, A.) Our notions of a will which is to dispose of an estate after the death of the owner, are associated with the idea of a written instrument, subscribed by the person whose estate is to pass, and attested by two or more witnesses. The requisites of writing, of subscribing, and of attesting witnesses, so indispensable to the force and validity of all ordinary wills of the present day, were not always, nor are they now, universally demanded. The common law is an ancient institution having its origin in a remote period of time when learning had few votaries, and the art of writing was comparatively unknown.
The testator William L. Hubbard was a mariner actually at sea. The will was made during his last illness, and within an hour of his death, and was sufficiently proved by the witnesses who were present, and has all the characteristics of a good nuncupative will. The decree made at the special term should be reversed and that of the surrogate affirmed, with the costs of the appeals to Maria J. Hubbard, the appellant.
Morse, Barculo and Brown, Justices.]