irrevocable as a compact, is revocable as a will, by any subsequent valid testamentary paper.

25. It is settled in the courts of chancery, by a great number of decisions, that mutual wills, duly executed, become irrevocable, in equity, after the death of either party.53

SECTION II.

NUNCUPATIVE WILLS.

1. This privilege in regard to executing wills is restricted mainly to soldiers and mariners.

2. The history and rules of law applicable to such cases found in Prince v. Hazelton.

3. Not required, in the earliest periods, to be made in extremis.

4. The earliest English law-writers require them to be so executed.

5. The rule as declared by Swinburne requires this; but his argument not.

6. The law so defined by Chancellor Kent and other writers.

7. Under statute of frauds this kind of will seldom made, except in extreme cases.

8. Blackstone and Chitty affirm that the legal requisites must be strictly fulfilled.

9. The requirements are substantially the same as in gifts mortis causa.

10. In the American states this kind of will is now greatly restricted.

11. Instructions for drawing a will not a good nuncupative will.

12. Not applicable to sickness of chronic character, except at the very last.

13. Soldiers and seamen can only make such wills in extremis.

14. In case of soldiers and seamen they need not call the witnesses in form.

15. Soldiers must be upon an expedition, and seamen at sea.

16. The term seaman, or mariner, applies to all kinds of navigation, to all engaged. 17. And if made during the voyage, but in harbor, it is sufficient.

18. The formalities of execution are sometimes dispensed with among soldiers.

19. The form of the will is not material. Capacity, purpose, and condition is all. 20. By statute of frauds nuncupative will cannot supersede written one, but may dispose of lapsed legacies.

21. Domat declares all merely nuncupative wills, too loose and liable to frauds. 22. Upon principle, soldiers' and mariners' wills may be proved by one witness. 23. The analogies might seem to require more, but the necessities of the case will not allow it.

"Lord Walpole v. Lord Orford, 3 Vesey, 402; s. c. 7 T. R. 138; Hinckley v. Simmons, 4 Vesey, 160; Izard v. Middleton, 1 Dessaus. Ch. 116.

24. The rule maintained by the New York courts. Opinion of Judge Bradford. 25. Statement of the most definite form of which the question is susceptible.

n. 39. Report of the remarkable case of Cole v. Mordaunt.

n. 40. The case of Prince v. Hazelton similar in many respects.

26. Restrictions in America. One who is a'passenger, not within the exception as to

seamen.

27. But a mariner at sea may make a nuncupative will, at the request of another. 28. Will not extend to lands. Strict construction applied to all such instruments. 29. Not good if made at request of party to be benefitted.

n. 43. Cases bearing upon the validity of nuncupative wills.

17 a. 1. It seems scarcely necessary, at the present day, to occupy much time, or space, upon the subject of nuncupative wills, in a treatise intended for practical use, since by the late English statute,1 and by the statutes of many of the American states, the privilege of making such wills is restricted to soldiers in actual military service, and mariners at sea,2 who are allowed to dispose of personal estate, including wages due them, in the same manner they might have done before the statute.

2. But the fact that the privilege still exists, although restricted within these narrow limits, will render desirable, perhaps, a brief exposition of the history of, and principles of law applicable to, this plan of testaments. This subject came before the Court of Errors in New York, at an early day, in a case3 affecting a large property, and under such a state of facts as to enlist the ablest counsel in the state, and occupied the court for many days in the hearing, and is most exhaustively discussed by Chancellor Kent, and by Mr. Justice Woodworth. These opinions contain the substance of all the learning upon the subject of nuncupative wills, from the earliest days to that date, and very little has occured since, which could add much to the very full discussion which the subject there receives.

1 1 Vict. ch. 26.

* General Statutes, Mass., ch. 92, sec. 9; 2 N. Y. Rev. Stat. 60, § 22. Prince v. Hazleton, 20 Johns. 501.

3. It seems to be conceded, by all writers upon the subject, that in the earliest periods of the history of wills, they must all have been made much in the manner nuncupative wills are now allowed to be made. And it seems very probable, from the nature of the case, that in regard to wills made in that early day, before the discovery of writing, or when the knowledge of the art was confined to a small number of persons, comparatively, that most testaments would have been made as a kind of parting declaration, or dying testimony of the testator, in regard to the 'disposition of his estate. And it does not seem to be considered, by writers upon the subject, that nuncupative wills were in the first place required to be made during the last sickness.

4. The earliest English writers upon this subject, thus defined them, as being such wills as are made when the testator "lyeth languishing for fear of sudden death, dareth not to stay the writing of his testament, and, therefore, he prayeth his curate, and others, his neighbors, to bear witness of his last will, and declareth by word, what his will is."4 But Chancellor Kent, adds to this passage: "I do not infer, from these passages, that unwritten wills were always bad, at common law, unless made in case of extremity, when death was just overtaking the testator."

5. But it seems to be well settled, that from before the period of Henry VIII. the law had become established in England, that such wills, to be of any avail, must be made in the last extremity, when the testator did not expect to recover, and had not time to make a more deliberate will, or a will in writing. For, although Swinburne 5 assigns for reason, why nuncupative wills were not commonly made, while the testator was in health, that

4

Perkins, sec. 476, in the time of Henry 8; Swinb. pt. 1, § 12, where it is said, "this kind of testament is made commonly, when the testator is now very sick, weak, and past all hope of recovery."

'Pt. 1, sec. 12, pl. 4.

"it is received for an opinion amongst the ruder and more ignorant people, that if a man should chance to be so wise as to make his will, in his good health, when he is strong and of good memory," &c., "that then surely he would not live long after," he declares, that such wills are only allowed to be made when the testator is in great extremity.

6. "This," says Chancellor Kent," has been the uniform language of the English law-writers, from that time, down to this day, so that it has become the acknowledged doctrine, that a nuncupative will is only to be tolerated, when made in extremis." And in Bacon's Abridgement, nuncupative wills are thus defined, such as are made "by word, or without writing, which is where a man is sick, and for fear that death, or want of memory or speech, should surprise him, that he should be prevented, if he staid the writing of his testament, desires his neighbors and friends to bear witness of his last will, and then declares the same presently, by word, before them." "And this being after his death proved by witnesses, and put in writing by the ordinary, is of as great force for any other thing but land, as when at the first, in the life of the testator, it is put in writing."

7. By the statute of frauds, this privilege of making nuncupative wills, in extremis, is still further restricted, the provisions of which we have here given at length, since they have

7

20 Johns. 510.

7 Vol. tit. Wills and Testaments, D, p. 305; 1 Inst. iii.; Wood, pt. 1, 787. 8 29 Car. II.

The statute of 29 Car. II. ch. 3, §§ 19, 20, 21, 22, 23, thus enacts: By $19, for the prevention of fraudulent practices, it is enacted: "1. That no nuncupative will shall be good where the estate thereby bequeathed shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses at the least, that were present at the making thereof, and bid by the testator to bear witness that such was his will, or to that effect." And by stat. 4 Anne, ch. 16, § 14, it is declared: That all such witnesses as are and ought to be allowed to be good witnesses upon trial at law, by the laws and custom of

been reënacted in most of the American states, and in many of them that class of wills is never allowed, except to soldiers, and mariners, as before stated. And Sir William Blackstone,10 after

this realm, shall be deemed good witnesses to prove any nuncupative will, or anything relating thereto.

"Nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his, her, or their habitation, or dwelling, or where he or she has been resident for ten days or more, next before the time of making such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his or her dwelling.

"§ 20. That after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will.

"§ 21. That no letters testamentary, or probate of any nuncupative will, shall pass the seal of any court, till fourteen days at the least, after the decease of the testator be fully expired, nor shall any nuncupative will be at any time received to be proved, unless process have first issued to call in the widow, or the next of kindred to the deceased, to the end they may contest the same, if they please.

§ 22. That no will in writing, concerning any goods or chattels, or personal estate, shall be repealed: nor shall any clause, devise, or bequest therein be altered or changed by any words or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing thereof read to the testator, and allowed by him, and proved to be so done, by three witnesses at the least.

Ҥ 23. Provided, that any soldier in actual military service, or any mariner, or seaman being at sea, may dispose of his moveables, wages, and personal estates, as before the making of this act."

19 2 Comm. 500, 501. This learned writer thus enumerates the requisites for a valid nuncupative will. "The testamentary words must be spoken with an intent to bequeath, not any loose, idle discourse in his illness; for he must require the bystanders to bear witness of such his intention; the will must be made at home, or among his family or friends, unless by unavoidable accidents; to prevent impositions from strangers; it must be in his last sickness; for if he recover, 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 with