proposition: The form was properly to have no form.' It is true the Roman law required two witnesses. This, however, did not relate to the essence of the act, but only to the proof. In respect to evidence, we do not follow the Civil or the Canon Law. No particular number of witnesses is requisite to verify an act judicially, and all the court demands is, to be satisfied by sufficient evidence, as to the substance of the last testamentary request, or declaration of the deceased. This ascertained, the law holds it sacred, and carries it into effect, with as much favor and regard, as would be paid to the most formal instrument, executed with every legal solemnity." 25. We have thus given the substance of all the important provisions of the English and American law, affecting the question of nuncupative wills, and in a form the most reliable in our power. It is a significant fact, that the stringent provisions ⚫ of the statute of frauds, upon this subject, are supposed to have originated from the circumstance of a gross fraud attempted the year before the enactment of that statute, in setting up a fictitious nuncupative will.39 If any one feels that there is a "Coles v. Mordaunt, 4 Vesey, 196, in note. That case was this, and is here said to be "a remarkable case: " "Mr. Cole, at a very 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 nuncupative was proved by nine witnesses. Upon the appeal to the Delegates, from the sentence of the Prerogative Court, in favor 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 should be revoked, but by writing,' which desire was fulfilled the next year, by the provisions of the statute of frauds." want of precision in the rules which we have laid down for the making of nuncupative wills, by soldiers and seamen, we can only say that we have made them as specific as the nature of the case would allow, so far as these two classes of persons are concerned; and as to all others, the right to make wills in this form, and the mode of doing it, was sufficiently defined in the English statute of frauds, and similar provisions exist in most of the American states, where the right of making nuncupative wills is not restricted to soldiers and seamen.40 26. There are a considerable number of cases in the American reports bearing upon this subject, most of which will be found carefully digested in Mr. Fish's note.11 Most of the American states have first followed the statute of frauds in regard to the formalities required in the execution and proof of nuncupative wills; and some have, subsequently, restricted them to seamen and soldiers, who seem to be the only persons who really require such an indulgence. It was held in Warren v. Harding,12 that a man who is a mariner by profession, but a passenger at the time of making his will, was not within the exception in the statute in favor of seamen. 27. And where the testator was a mariner at sea, in his last sickness, and within an hour of his death, being inquired of as to what disposition he wished to make of his property, replied, "I want my wife to have all my personal property," the declaration being made in the presence of four witnesses, and the "The case of Prince v. Hazleton, 20 Johns. 502, is somewhat similar to that of Coles v. Mordaunt, supra, and the principles involved in the entire subject, here received a thorough review. It was the case of a nuncupative will of a large estate, alleged to have been made by the deceased, at a boarding-house, in favor of one who had been his nurse, and whom he had known but a short time; and it was held a fraudulent pretence of the witnesses. 1 Wms. Exrs. 104. 2 Rhode Island, 133. The testator was on his way to take command of a lighter, and not to act as a mariner at sea. testator being of sound mind, and under no restraint, it was held a good nuncupative will.48 Hubbard v. Hubbard, 12 Barb. 148. It seems always to have been regarded as essential to the validity of ordinary nuncupative wills, in the English ecclesiastical courts, as before intimated, that there should have been a distinct calling of the witnesses to take notice of the testator's declarations of a will, and that the testator make the declarations, animo testandi, with a view to have the very words then uttered by him constitute his will. Bennett v. Jackson, 2 Phillim. 190. See also, Winn v. Bob, 3 Leigh (Va.) 140. But in some of the states, although requiring greater strictness of proof than in regard to written ones, Woods v. Ridley, 5 Cushman, 119, it has not been required that the declarations of the testator should have been made exclusively for the purpose of creating a will in the present tense. Calling witnesses to the bedside of the testator, to hear his declarations to the person requested to prepare his will, will constitute a good nuncupative will, where the testator is unable to execute his contemplated will. Burch v. Stovall, 5 Cush. 725. And in Gibson v. Gibson, Walker, 364, in the same state, it was held, that two witnesses must be present when a nuncupative will is executed, and the person making the same must do it, animo testandi, that is, must himself understand that he is making his will. And in Tennessee, where the two witnesses testified that the testator called upon them, and said: "I wish to make a disposition of my effects," and then went on to declare the nuncupation; and the witnesses, though not called upon in the words of the statute, felt specially required. to notice the factum of the will, and the deceased supposed himself to be performing the testamentary act, it was held a good nuncupative will. Barker v. Dodson, 4 Humph. 342. The two witnesses required by statute, to the execution of the will, must both hear the same declaration, and it is not sufficient, that each heard different declarations at different times. Tally v. Butterworth, 10 Yerger, 501. And where the testator was asked, a few hours before his death, what disposition he would make of his estate, and replied, "all to my wife that's agreed upon," and looking to his father, who replied, "yes, yes," and then to his wife, said, "you see my father acknowledges it," it was held a good nuncupative will. Parsons v. Parsons, 2 Greenl. 298. Where the two witnesses, required by statute to prove a nuncupative will, do not agree as regards the will, it is only established as far as they do agree. Portwood v. Hunter, 6 B. Mon. 538. In a late English case, Parker in re, 2 Swab. & Trist. 375, where the master of a vessel, being at an intermediate port, wrote and forwarded by post a letter, of which some portion was testamentary, the vessel being subsequently lost at 28. In most, if not all, of the American states, lands cannot be disposed of by nuncupative will. And in nearly all of them, it is believed, the privilege of disposing of estate by nuncupation is restricted within very narrow limits, and guarded, in its practical enforcement, by the most rigid construction.15 29. And where the words attempted to be set up as a nuncupative will, were drawn from the testator by the person whose interest it was to establish them as a will, and no witnesses were called upon by the testator to bear witness to his words, it was held not a good will.46 SECTION III. REQUIREMENTS IN REGARD TO SIGNING WILL. 1. The different English statutes upon the subject. 2. Signing by mark, or by initials, or by fictitious name, sufficient. 4. Parol evidence admissible to show that a will was executed by mistake. 6. A power to be executed, by will under seal, requires the use of a seal. 6a. Late English case of signature by stamp. 7. Testator's signature may be affixed by the hand of another, at his request. 8. Only one signature required, where there are different pieces of paper. 9. The signature may be in any part of the paper, if affixed as the final act. 10. This rule more commonly applied to holograph wills. Sometimes to others. n. 21. Will not presumptively executed, as of the date of the codicil, in some cases. 11. Decision in Virginia, that the paper must, on its face, appear complete. n. 27. Review of the cases, and the principle of the rule. sea, it was held, that he was a mariner at sea, and that such letter being in his handwriting, and testamentary, was entitled to probate. "Palmer v. Palmer, 2 Dana, 390. Rankin v. Rankin, 9 Iredell, 156; Dorsey v. Sheppard, 12 Gill & J. 192; Haws v. Palmer, 9 Harris, 296; Yarnall's Will, 4 Rawle, 46. "Brown v. Brown, 2 Murphy, 350. 12. The later cases require no formal publication, unless by express statute. 13. In New York, that is required by statute, and the proof, either internal or external, must show the fact. 14. The attestation clause is presumptive evidence of due execution in that mode. But if that is defective, or the witnesses deny the facts, it may be established by proof aliunde. 15. Acknowledgment of signature, the same as making, in presence of the wit nesses. 16. The English courts do not require the witnesses to know the paper is a will. 17, and n. 38. Review of cases showing that acknowledgment of the paper as a will is equivalent to signing. 18. Presence of witnesses, in case of a blind testator, sufficient, although he cannot see them. 19, and n. 40. Acknowledgment of the paper as testator's act, sufficient. Adding a mark no detriment. 19a. In Ohio the law requires acknowledgment, by testator; but this may be by acts. 20. Further review of English cases upon the point of testator declaring the paper to be his will. 21, and n. 43. Review of the cases and of the principle involved in this inquiry. 22, and n. 47. The mere draft of a will unexecuted, or imperfectly executed, can be of no avail. 23. The use of a seal dispensed with in most of the states, except in the execution of powers. 24. Some of the states require signature at the end, otherwise the place of signing unimportant. 25. Statute in regard to wills affects existing wills, unless specially excepted. 26. It is not important in what order the several acts of execution occur. 27. No particular form of words are requisite, either in acknowledgment or publication. 28. Misspelling of testator's name may indicate that he did not sign it. 29. Where a will is written according to testator's directions, not requisite he should know its contents before signing. 30. Not requisite the testator sign by the same name used in body of will. 31. Not essential in what order the names of the witnesses and testator appear. § 18. 1. A brief statement of the requirements of the different English statutes, in regard to the execution of wills, may enable us the more fully, and accurately, to comprehend and apply the decisions of the courts, at different periods, upon this subject. |