this clause. Mr. Cole, at an advanced age, married a young woman, who, during his life, did not conduct herself with propriety. After his death, she set up a nuncupative will, said to be made in extremis, by which the whole estate was given to her, in opposition to a written will made three years before the testator's death, giving 3000l. to charitable uses. The nuncupation was proved by nine witnesses. Upon the appeal to the Delegates, from the sentence of the Prerogative Court in favour of the written will, Mrs. Cole offered to go to a trial at law in a feigned action, submitting to be bound by the result. Upon the trial at the bar of the court of King's Bench, it appeared, that most of the witnesses for the nuncupation were perjured; and that Mrs. Cole was guilty of subornation. After that, she applied for a commission of review, which was refused; and, upon that occasion, Lord Nottingham said, "I hope to see, one day, a law, that no written will shall be revoked but by writing."

Positive dispositions by nuncupative testaments are not laid by the statute under the same restraint in respect to writing, but, as Sir William Blackstone observes', the legislature has provided against frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse; and is hardly ever heard of but in the only instance where favour ought to be shewn to it,

• Comm. 2 vol. 500.

when the testator is surprized by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, and, as the same learned writer observes, not in any loose idle discourse; for he must require the bye-standers to bear witness of such his intention. The will must be made at home or among his family or friends, unless by unavoidable accident, to prevent impositions from strangers. It must be in his last sickness; for if he recovers, he may alter his dispositions, and has time to make a written will. It must not be proved at too long a distance from the testator's death, lest the words should escape the memory of the witnesses; nor yet too hastily and without notice, lest the family of the testator should be put to inconvenience or surprize. To which we may add, that no such will is available, where the estate thereby attempted to be bequeathed exceeds the value of 301.

By perusing the clause at the head of the chapter, or in the statute at the end of the volume, standing first in the appendix, the reader will at once be possessed of all that relates to this subject; and by. Of the qualifi- referring to the 2 Ann, c. 16. he will find it thereby enacted, that "all such witnesses as are and ought

eation of wit

nesses to esta

blish a nuncupative testament.

And of the degree of evidence.

to be allowed to be good witnesses upon trials at law, by the laws and customs of this realm, shall be deemed good witnesses to prove any nuncupative will, or any thing relating thereto."

It is to be remarked, that the words in this clause.

are, that "no nuncupative will shall be good, that is not proved by the oaths of three witnesses at the least, that were present at the making thereof; whereby the construction is excluded, which, we have seen, has allowed the publication of a written will of lands to be established by the proof of any one of the three subscribing witnesses. Dr. Shallmer", by will in writing gave 2001. to the parish of St. Clement Danes: and afterwards, Prew, the reader, coming to pray with him, his wife put him in mind to give 2007. more towards the charges of building their church at which, though Dr. Shallmer was at first disturbed, yet afterwards, he said he would give it, and bid Prew take notice of it; and the next day bid Prew remember what he had said to him the day before, and died that day. Within three or four days after, the Doctor's widow put down a memorandum in writing of the said last devise, and so did her maid; Prew died about a month afterwards, and amongst his papers was found a memorandum of his own writing, dated three weeks after the Doctor's death, of what the Doctor said to him about the 2001. and purporting that he had put it in writing the same day it was spoken; but that writing which was mentioned to be made the same day it was spoken, did not appear; and these memorandums did not expressly agree.

About a year afterwards, on the application of the

404.

Phillips v. the Parish of St. Clement Danes, 1 Eq. Ca. Abr.

Of altering á written will by anuncupative disposition.

parish to the Commissioners of Charitable Uses, and their producing these memorandums and proofs by Mrs. Shallmer and her maid, they decreed the 200 1. But on exception taken by the executors, the decree was discharged of this 2001. and the Lord Chancellor held it not good, because it was not proved by the oath of three witnesses: for though Mrs. Shallmer and her maid had made proof, yet Prew was dead, and the statute in that branch requires not only three to be present, but that the proof shall be by the oath of three witnesses.

And by force of the 21st section, until probate has been obtained of a nuncupative will, it cannot be set up in pleading against the administrator, as ap✩ pears by the case of Verhorn v. Brewen*, where an administrator brought a bill to discover and have an account of the intestate's estate; and the defendant pleaded, that the supposed intestate made a nuncupative will, and another person executor; to whom he was accountable, and not to the plaintiff, as administrator. But it was decreed, that though there were such a nuncupative will, yet it was not pleadable against an administrator before it was proved.

It is clear from what has been already shewn, that no nuncupative disposition, though made and published with the due formalities prescribed by the 19th and 20th sections, can make any alteration in a

* 1 Chan. Ca., 192,

written will, by reason of the restriction in this particular contained in the 22d clause of the statute. Yet if a legacy given by a written will has lapsed, or was void for some legal objection, such legacy might be the subject of a nuncupative disposition. Thus, where one G. S. (4) on the 2d of September, 1679, made his will in writing, and appointed E., his wife, his executrix, and gave all the residuum of his estate, after some legacies paid, to her, and the wife died in the testator's life-time, who afterwards made a nuncupative codicil, and gave to another all that he had given to his wife, and died; and the single question was, whether this nuncupative codicil was allowable, notwithstanding the 22d section of the statute of frauds; it was resolved by Sir Hugh Wyndham, Justice, Sir Thomas Raymond, and several civilians joined in the commission, that the nuncupative codicil was good; for, by the death of the wife before the testator, the devise of the residue was totally void, and so there was no will as to that part.

The nuncupative codicil was, therefore, in the foregoing case, a new disposition, as to so much, because there was no will, its operation being determined. And it was objected, that, by the same reason, if any part of a will in writing was made by force or fraud, the thing

(4) Sir Thomas Raymond, 334. before the Delegates at Serjeant's Inn, December 9, 1679.