exceptions as to wills of soldiers and mariners:

Act."

they were spoken, and not sooner than fourteen days after the death of testator. In Illinois written wills were provided for by the northwestern ordinance of 1789 and by the act of 1819, and the revised code of 1829 requires all wills to be in writing. Nuncupative wills of personal property are, however, made valid if reduced to writing within ten (since 1829, twenty) days, and proved by two credible disinterested witnesses, who must swear that they heard the testator pronounce such will and call upon some person or persons present to bear witness to it, and that they believe the testator to be of sound mind; and such will must have been made in testator's last sickness, and cannot be proved until sixty days after his death. In Indiana all wills of real property must be in writing. Nuncupative wills were excepted, but these were not valid if they disposed of property exceeding $80 in value (changed by act of 1829 to $50, and in 1852 to $100), unless proved by two witnesses who were present, and unless testator called on some person or persons present to bear witness to the will; and such will must have been made during testator's last sickness, and (until 1852) at his home or place of abode for ten days at least prior to his death, unless surprised away from home by sudden sickness and death.

By the acts of 1807 and 1818 no probate could be granted on such will after six months from testator's death, unless it had been reduced to writing within six days after it was pronounced; but in 1829 it was enacted that no probate could be granted after six months,

(d) See post, p. *104.

and such will must have been reduced to writing within six days in all caseschanged in 1831 to fifteen days. Nor could probate be granted of such will except on citation of widow or next of kin, and (until 1829) at least fourteen days after testator's death. In Iowa all wills must be in writing, except nuncupative wills of personal property (limited in 1843 to $300), and such will must be proved by two competent witnesses. Prior to 1843 it was further required that such will be reduced to writing within twenty days, and be proved by two credible witnesses, who must swear that they were present and heard the testator declare the same and call upon some person or persons present to bear witness to it, and that they believe that testator was of sound mind and memory, and that the said will was made in testator's last sickness, or on a voyage at sea, or a field of battle, "or under such other circumstances that it could not be reduced to writing by the testator," and no letters testamentary were to be issued on such will until sixty days after testator's death. In Kansas every will must be in writing, except nuncupative wills of personal property made in testator's last sickness, and reduced to writing within ten days, and subscribed by two competent witnesses; and it must be proved that the testator was of sound mind and memory, and not under restraint, and called upon some person or persons present to bear witness to his will, and such will must be offered for probate within six months after testator's death. Before 1865 nuncupative

(e) See post, p. *105.

publication not

wills were limited to $300 worth of personal property, and before 1859 to $200 worth of property, and such will must have been made during testator's last sickness, and at his home or residence of at least ten days previous to his death, except in case of surprise by sickness and death away from home. The act of 1859 required such will to be proved in one year, and the act of 1855 required that it be reduced to writing within thirty days after it was pronounced and proved within six months after testator's death, but not within fourteen days and after citation of widow or next of kin. In Kentucky nuncupative wills were provided for by the act of 1785, as by act of 29 Car. II., c. 3, to be made during testator's last sickness and at his home or residence of at least ten days prior to his death, unless surprised away from home by sickness and death, and if the property bequeathed exceeded £10 in value it must be proved by two witnesses that testator called on some person present to bear witness, and probate of such will must be made within six months after testator's death, unless it had been reduced to writing within six days after it was pronounced, nor within fourteen days, or without citation of widow or next of kin. By the Revised Statutes of 1851, however, power to make a verbal will is given only to soldiers and sailors. In Louisiana verbal testaments are abrogated, and nuncupative, or open wills, like mystic or sealed wills, must be in writing. In Maine all wills must be in writing except nuncupative wills. Nuncupative wills, if the property bequeathed exceeds $100 in value must be published

(f) See post, pp. *104, et seq.

in the presence of three witnesses during testator's last sickness and at his home or place of abode for at least ten days previous to his death, except in case of surprise by sickness and death away from home. No probate of such will can be made more than six months after testator's death, unless it has been reduced to writing within six days after its publication; nor until fourteen days after testator's death and on citation. In Maryland the statute of 29 Car. II., c. 3, is included in Chancellor Kilty's list of English statutes "introduced, used or practiced by the courts of law or equity in this state." Sections 19 and 20 of this statute were afterwards made part of the Maryland statute law, with change in limitatation of amount from £30 to $300. All devises of real property must be in writing. In Massachusetts the act of 29 Car. II., c. 3, was substantially enacted in 1692, and by the same act devises of real estate were required to be in writing. An earlier act of 1671 required but two witnesses to a nuncupative will, but provided that it should be reduced to writing within three days, and proved at the next term of court. The act of 1784 substantially re-enacts this law, fixing the limit to unwitnessed parol wills at £50. By the general statutes of 1859, however, no provision is made for other nuncupative wills than those of soldiers and sailors. In Michigan devises of real property must be in writing. Nuncupative wills of personal property exceeding $100 in value were provided for and restricted in the same manner as by the statute of frauds. In 1811 the number of necessary witnesses was reduced to two, and such wills were

The statute does

not extend to wills made before Jan. 1, 1838.

required to be written down and attested within six days after testator's death. By the existing law, no nuncupative will is valid for property exceeding in value $300. In Minnesota all except nuncupative wills must be in writing, and nuncupative wills are now permitted only to soldiers and sailors in actual service. Formerly nuncupative wills were allowed in the same manner and with the same restrictions, where the property bequeathed exceeded $150 in value, as by the statute of 29 Car. II., c. 3. In Mississippi devises of real property are required to be in writing, and the provisions and restrictions of the statute of frauds, except as to attestation, apply to all nuncupative wills, and if the property bequeathed exceeds in value $100, it must be proved by two witnesses that the testator called on some person or persons present to bear witness to the will. In Missouri the provisions of the statute of frauds, except as to attestation, were applied to all nuncupative wills, and if such will disposed of property exceeding in value $200, it must be proved by two witnesses that the testator called on some person or persons present to bear witness to it. In 1821 the time to reduce to writing was changed from six to thirty days; so, 1825, R. L. 790, 22 5, 7; but ? 4 of this act prohibited all nuncupative wills for more than $200 worth of property, and applied the provisions of 23 of the act of 1808 to all nuncupative wills. In Montana every will, other than a nuncupative will, must be in writing. Nuncupative wills must be for property

(g) But every will re-executed or republished or revived by any codicil is, for the purposes of the act, to be deemed

not exceeding $1,000 in amount; must be made only by persons in actual military service or doing duty on board a ship at sea, in actual contemplation, fear or peril of death or in expectation of death from injuries received the same day. They must be spoken in the presence of two witnesses; the words must be reduced to writing within thirty days after they were spoken; cannot be probated until the testator has been dead fourteen days and must be probated within six months after they were spoken. In Nebraska personal property to the amount of $200 might be bequeathed by a verbal will made in the presence of two competent witnesses, by the act of 1855, and all other wills were required to be in writing. In 1866, however, the provisions of the statute of frauds were enacted to apply to nuncupative wills exceeding $150 in amount. In Nevada all but nuncupative wills must be in writing, and no nuncupative will is valid for more than $1,000 worth of property; and all nuncupative wills must be made during testator's last sickness, and proved by two witnesses present at the time, and the testator must have called upon the persons present, or some of them, to bear witness to his will. No proof of such will can be made more than three months after it was spoken, nor can it be admitted to probate within fourteen days after testator's death, or without citation of widow or next of kin, nor unless first reduced to writing by the probate judge. In New Hampshire the statute of frauds, as relating to nuncupative wills of personal property to the value of

to have been made at the time the same was so re-executed, republished, or revived (sect. 34).

Presumption as

$100 was enacted in 1822, and 33 19 and 20 were re-enacted in 1878. In New Jersey the provisions of the statute of 29 Car. II., c. 3, are applied to nuncupative wills of property not exceeding $80 in value. All other wills must be in writing. In New York statutory provision was first made for written wills in 1649 by an ordinance of the directors and council of New Netherland. This ordinance provides that "whereas, it is daily observed that * * grave mistakes are committed in the writing and drawing up of evidences by private persons who are neither qualified thereto by oath nor called thereto by authority, whereby frequently many things are written to the advantage of those who have the papers drawn up, interspersed with sinister, obscure and dubious words," therefore all "contracts, testaments," &c., "which shall not be written by the secretary or other authorized person" shall be invalid. And it was further enacted in 1656 that "all skippers, commissaries, supercargoes, assistants, secretaries, notaries, auditors and others, who as public persons write wills, shall particularly take care that they are acquainted with the testators, and be careful that they duly comprehend the testator's intention, and that on and in their respective ships and places of residence all the people's wills be correctly written and registered in a book, and signed by the testator and two credible witnesses besides the skipper," special provision being made for soldiers marching against the enemy. By the statute of wills of 1787 the provisions of the act of 29 Car. II., c. 3, as to nuncupative wills, were enacted, but by the Revised Statutes of 1829, no nuncupative wills are allowed

to the time when

a will without

date was made.

except those of soldiers and sailors in actual service. In North Carolina the act of 1784 applied the provisions of the statute of frauds to all nuncupative wills of property above the value of £100. This was changed by the act of 1841, which required wills of personality to be executed with the same formalities as wills of realty, and all wills in North Carolina must now be executed in writing. In North Dakota every will, other than nuncupative wills, must be in writing. Nuncupative wills must be for property not exceeding $1,000; must be made in the presence of two witnesses and must be made by a person in actual military service, or doing duty on shipboard at sea and in actual contemplation, fear or peril of death, or in expectation of death from injuries received the same day; must be probated within six months after being spoken and not sooner than fourteen days after the death of the testator. In Ohio nuncupative wills are only allowed for personal property, can only be made during testator's last sickness, and must be proved by two disinterested witnesses, and it must be proved by them that the testator was at the time of sound mind and memory and not under restraint, and that he called on some person present to bear witness to his will, and must since 1840 be reduced to writing and subscribed by the witnesses within ten days. Formerly no probate of such will could be made after six months unless it had been reduced to writing within six days, but since 1816 there can be no probate after six months, and until 1824 the will must have been reduced to writing in six, now ten, days. In Oregon all wills must be in writing, except nuncupative wills to an

amount not exceeding $200, and such will must have been made under the circumstances required by the statute of frauds, and proved by two witnesses, and cannot be proved after six months, unless reduced to writing within thirty days, nor can it be proved within fourteen days after testator's death, nor without citation of widow or next of kin. In Pennsylvania all wills must be in writing, except nuncupative wills of personal property, which may be made under the circumstances set out in the English statute, without limitation as to amount bequeathed; but if the amount exceeds $100, the will must be declared by the testator in the presence of two witnesses to be his will. There is no special provision as to the probate of such wills. In Rhode Island wills of personal, as of real, property must be in writing. In South Carolina the provisions of the statute of 29 Car. II., c. 3, became law in 1712 by formal enactment. To this was added in 1733 the requirement that such wills should be proved by competent witnesses. Since 1789 nuncupative wills for property of not more than £10, now $50, value may be made and proved as prescribed by the English statute, except that there can be no probate after twelve months, and it is not postponed for fourteen days after testator's death. In South Dakota every will, other than nuncupative wills, must be in writing. Nuncupative wills must be for property not exceeding $1,000; must be made in the presence of two witnesses; and must be made by a person in actual military service, or doing duty on shipboard at sea and in actual contemplation, fear or peril of death, or

6. Dates of wills, however, are not conclusive. And where a Circuit Court, upon trial, has filed findings as to which of two wills is the later, the findings will

in expectation of death from injuries received the same day; and must be probated within six months after being spoken, and not sooner than fourteen days after the death of the testator. In Tennessee the provisions of the English statute apply, the limitation of amount therein being fixed at £100 in 1784 and changed to $250 in 1852. In Texas the provisions of the statute of frauds were copied into the statute of 1840, with a change of £30 to $30, and by omission of all amount this was afterward made applicable to all nuncupative wills. So in Vermont by act of 1797 changing £30 to $200; but the provisions as to probate have been dropped from the latter statutes. So in Virginia, by act of 1748, changing the number of witnesses to two, and the amount from £30 to £10. This act continued in force (changing amount to $30), until 1840, when wills of personality, except nuncupative wills, were required to be executed like wills of real property, and by the code of 1873, no exception is made except in favor of soldiers and sailors. The law of West Virginia is in this respect like that of Virginia. In Washington every will, except nuncupative wills, must be in writing. Nuncu pative wills are not valid for more than $200 of property and unless declared before two witnesses; they must be made during the last illness of the testator at his dwelling-house or where he had been residing for at least ten days, except when the testator is taken sick away from home, and except mariners or soldiers disposing of their wages or personal property; and must be probated within six months from the speaking. In

not be disturbed, unless there be a total want of evidence to support them. Austin v. Fielder, 40 Ark. 144.