Irwin v. Rogers
157 P. 690
Wash.
1916
Check Treatment
Morris, C. J.

The only question presented by this appeal is whether, under our law, a nuncupative will is effective to pass title to real estate. Being solely a question of law, thе facts are immaterial. Before noting our statutes, it will clarify our reasoning to first briefly review the history of written and nuncupative wills.

In England, prior to the Norman Conquest, freedom of testamentary disposition over land had been established, except as limited by grant and certain family claims. Following the introduction of the feudal system, the power of aliena*285tion by will soon disappeared, save through the medium of a devise to uses enforced in chancery, except in a few localities wherе feudal tenures did not prevail. It is hardly possible to speak with certainty as to the formal requirements of such wills. However, it is very unlikely that a writing was necessary. It was not until the рassage of 32 Hen. VIII (known as the statute of wills) that real property became devisable at common law by written will. At this time real property could pass only by a will in writing, made with certain prescribed formalities, while personal property could be bequeathed by nuncupation without any formality whatever. With the growth of learning and the progress of letters, the necessity for nuncupative wills ceased to exist. In addition to the lack of necessity, many fraudulent practices grew up in setting forth such wills, аnd such frauds became so common that nuncupative wills gradually fell into disfavor and were finally considered to be invalid unless made during the last sickness of the testator. Owing to the many frauds and perjuries to which nuncupative wills were subject, the statute of frauds was enacted (29 Chas, n), putting these testaments under very strong restrictions. Under the law as thеn administered, a nuncupative will was effective to pass only the testator’s personal estate, for real estate being the subject of devise only, by forcе of 34 Hen. VIII, which required the will to be in writing, a nuncupative will was regarded as too informal in character to operate on this class of property. The following сitations will give a more complete history of the law of wills. 2 Blackstone, Commentaries, p. 489 et seq.; 30 Am. & Eng. Ency. Law (2d ed.), 549, 560, and 561; Gardner, Wills, § 12; 1 Schouler, Wills, Executors and Administrators (5th ed.), § 15.

With this brief resume, we come to our own material statutes, as found in the following sections of Rem. & Bal. Code:

“Section 1319. Every person who shall have attained the age of majority, of sound ‍​‌​​‌‌​​‌​‌‌‌​‌​‌‌​​​​​​​​‌​​​‌​​‌​‌‌‌‌‌‌​‌‌​‌‌​‍mind, may by lаst will devise all his or her estate, real and personal.”
*286“Section 1320. Every will shall be in writing, signed by the testator or testatrix, or by some other person under his or her direction in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will in the presence of the testator.”
“Section 1330. No nuncupativе will shall be good when the estate bequeathed exceeds the value of two hundred dollars, unless the same be proved by two witnesses who were present at the mаking thereof, and it be proven that the testator, at the time of pronouncing the same, did bid some person present to bear witness that such was his will, or to that effect, and such nuncupative will was made at the time of the last sickness and at the dwelling' house of the deceased, or where he had been residing for the space of ten days or more, except where such person was taken sick from home and died before his return. Nothing herein contained shall prevent any mariner at sea or soldier in the military service from disposing of his wages or other personal property by nuncupative will.” (P. C. 409 §§ 25, 29, 49.)

Based upon these statutes, appellants’ argument takes something of a wide range, but as we understand it, it may be briefly summarized as follows:

First: The right or power to dispose of property by will is solely a creature of statute. In other words, is a civil and not a natural right.
Second: The term “will” includes both written and nuncupative wills.
Third: That under § 1319, “Every person . . . may by last ‍​‌​​‌‌​​‌​‌‌‌​‌​‌‌​​​​​​​​‌​​​‌​​‌​‌‌‌‌‌‌​‌‌​‌‌​‍will devise all his or her estate, real and personal.”
Fourth: That the only power to make a will in this state is derived from § 1319.
Fifth: That § 1330, not specifically indicating the character of property to pass by nuncupative will, must necessarily be governed in this respect by § 1319, which expressly provides for the devise of both real and personal property by mil.

There can be no doubt of the soundness of appellants’ first proposition, that the right to make a testamentary disposition of property is purely a creature of statute and within absolute legislative control. United States v. Perkins, 163 U. S. *287625; In re Noyes’ Estate, 40 Mont. 178, 105 Pac. 1013. Such is the reasoning and effect of our own decisions. State v. Clark, 30 Wash. 439, 71 Pac. 20; Strand v. Stewart, 51 Wash. 685, 99 Pac. 1027. The second, third and fоurth propositions of appellants may also be accepted for the purpose of deciding this case. We now come to the fifth proposition, asserting that, inasmuch as § 1330 does not in express terms designate the character of property which may be disposed of by nuncupation, we are relegated to § 1319, which grants the privilege as to both real and personal property.

In this case, as in all others of statutory interpretation, a cardinal rule in determining the question presented is to ascertain the intent of the legislature. It is a sound rule that, whenever the legislature uses a term without defining it, such term being well known to the common law, аnd there given a definite meaning, such use will be presumed to have been made in the sense in which it was understood at common law. Put in another way, where terms which were used in the common law are contained in a statute without an explanation of their meaning, or the sense in which they are to be construed, they will receive the construction placed upon them by the common law.

“Where a statute uses a word, which is well known and has a definite sense at common law or in the written law, without defining it, it will bе presumed to be used ‍​‌​​‌‌​​‌​‌‌‌​‌​‌‌​​​​​​​​‌​​​‌​​‌​‌‌‌‌‌‌​‌‌​‌‌​‍in that sense and will be so construed, unless it clearly appears that it was not so intended.” 1 Lewis’ Sutherland, Statutory Construction (2d ed.), § 398.

This rule of construction is decisive of the question presented. Our nuncupative will statute (Rem. & Bal. Code, § 1330; P. C. 409 § 49) is taken almost verbatim from the English nuncupative will statute (29 Chas. II), which, at the time of the enaсtment of our statute, had been uniformly construed as to exclude real estate. It is a sound rule that a statute will not be construed in derogation of the common law unlеss the legislature has clearly expressed such an intention. *288Appellants’ sole argument is based upon the fact that the legislature did not, in Rem. & Bal. Code, § 1319 (P. C. 409 § 25), add “in writing” after thе word “will,” saying in their brief:

“Had the legislature of this state said that ‘Every person may by last will “in writing” ’ instead of saying ‘may by last will and testament devise all his or her estate, real and personаl’ we would be frank to say that the question now presented would be a debatable one.”

This contention assumes that, by the mere omission of the words “in writing,” the legislature has сhanged the ‍​‌​​‌‌​​‌​‌‌‌​‌​‌‌​​​​​​​​‌​​​‌​​‌​‌‌‌‌‌‌​‌‌​‌‌​‍settled law of nuncupative wills as it has stood for generations. To so hold would be judicial legislation.

Another reason presents itself why real estate сannot pass by nuncupative will, viz.: our statutes relative to the transfer of such property. It has long been the general policy of our law, as expressed in various statutes, to require all contracts conveying real property, or evidencing any interest therein, to be in writing. Rem. & Bal. Code, § 8745 et seq. (P. C. 143 § 1). To now hold that real estate can pass by nunсupation would be in effect to engraft an exception to the general rule and change the policy as to conveyances of real estate by devise. Like rеasoning is made use of in Texas and Wisconsin in holding that real estate cannot be devised by nuncupative will. Lewis v. Aylott, 45 Tex. 190; Moffett v. Moffett, 67 Tex. 642, 4 S. W. 70; In re Davis’ Will, 103 Wis. 455, 79 N. W. 761. The Texas statutes on wills are in effect the same as ours. Vernon’s Sayles’ Civil Statutes, § 7855 et seq. Other cases throwing much light on the query are: Maurer v. Reifschneider, 89 Neb. 673, 132 N. W. 197, Ann. Cas. 1912 C. 643; Prince v. Hazleton, 20 Johns. (N. Y.) 501; Smithdeal v. Smith, 64 N. C. 52; In re Male’s Will, 49 N. J. Eq. 266, 24 Atl. 370; Brown v. State, 87 Wash. 44, 151 Pac. 81.

A diligent search has revealed only one case (Gillis v. Weller, 10 Ohio 462) holding a contrary view. Appellants *289do not strongly rely on this case, and we limit our discussion of it to a quotation from Maurer v. Reifschneider, supra:

“Our attention has not been called to a case from any state, еxcept Ohio, in which it has been held that a nuncupative will is efficacious to pass the title to land. The soundness of that decision ‍​‌​​‌‌​​‌​‌‌‌​‌​‌‌​​​​​​​​‌​​​‌​​‌​‌‌‌‌‌‌​‌‌​‌‌​‍is to be doubted, and in that state the stаtute has since been changed. This court, as well as the courts of this country generally, does not look with favor upon oral testaments.”

We are clearly of the opinion that the legislature did not intend to change the common law relative to nuncupative wills, and that until it does so in unmistakable language, real estate cannot be devised under such a will.

The judgment is affirmed.

Mount, Chadwick, and Ellis, JJ., concur.