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SECTION VI.

Of Nuncupative Wills and Codicils.

A nuncupative Testament is when the testator, without any tive Wilnis

All nuncupawriting, doth declare his Will before a sufficient number of (made on and

after Jan. 1, witnesses (f). Before the Statute of Frauds it was of as 1838) are in

valid : great force and efficacy (except for lands, tenements, and hereditaments), as a written Testament (g). But as Wills of this description are liable to great impositions, and may occasion many perjuries, that statute (29 Car. II. c. 3,) laid them under several restrictions; except when made by “any soldier being in actual military service, or any mariner or seaman being at sea" (h). And now by the new statute of Wills (1 Vict. c. 26,) nuncupative Wills (or other testamentary dispositions) are altogether rendered invalid. The exception, except those however, in favour of soldiers and mariners has been con- soldiers or tinued by the 11th section of the latter statute, which pro

mariners. vides and enacts that “any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this Act.” This privilege, as it respects soldiers, has been held to be

Swinb. Pt. 1, s. 12, pl. 1. pressed to be done, it was consiGodolph. Pt. 1, c. 4, s. 6. It is dered a nuncupative Will only : called Nuncupative, says Swin- Swinb. Pt. 1, s. 12, pl. 6. Godolph. burne, a nuncupando, i.e. nomi- Pt. 1, c. 4, s. 7. nando, of naming ; because when a (9) Swinb. Pt. 1, s. 12, pl. 3. man maketh a nuncupative testa- Godolph Pt. 1, c. 4, s. 6. ment, he must name his executor, () It appears from the Preface and declare his whole mind before to the Life of Sir Leoline Jenkins, witnesses : ibid. pl. 2. According that he claimed to himself some to the civil law, the appointment merit for having, during the preof an executor was the essence of a paration of the Statute of Frauds, Will; and if he were appointed by obtained for the soldiers of the word of mouth, although many le- English army the full benefit of gacies were made and written in a the testamentary privileges of the Will, and many things were ex- Roman army: 3 Curt. 531.

of this exception :

Construction confined, by the insertion of the words “ actual military ser

vice," to those who are on an expedition : And consequently as to soldiers : it has been decided, that the Will of a soldier made while he

was quartered in barracks, either at home (i) or in the colonies (k) is not privileged. The same was held as to the Will of a soldier made at Bangalore, in the East Indies, whilst in command of the Mysore division of the army there stationed, and who died whilst on a tour of inspection of the troops under his command (1). (The term “soldier" extends to persons in the military service of the East India

Company) (m). as to mariners : So, in the case of The Earl of Euston v. Seymour (n), the

testator, Lord Hugh Seymour, was commander-in-chief of the naval force at Jamaica, but lived on shore at the official residence with his family: And it was held by Sir Wm. Wynne, that the testator did not come within the exception; for that he was not " at sea” within the meaning of that expression in the Act; and consequently that a nuncupative Will made by him on shore was invalid. But in a late case on motion (o), the unattested Will of a seaman, who, while on board a vessel lying in the harbour of Buenos Ayres, on the 4th of November, 1839, obtained leave to go on shore, where he met with an accident and was thereby so severely injured that he died on shore on the 9th, was admitted to probate as being within the exception ; And the Court distinguished the case from that of Lord Hugh Seymour, who was living on shore at Jamaica, only occasionally going on board his ship; but this was to be regarded as the Will of a seaman " at sea," although the deceased was not actually on board ship at the time the Will was made. So where an Admiral, though not actually at sea, was in a river on a

(*) Drummond v. Parish, 3 Curt. 522.

(k) White v. Repton, 3 Curt. 818. See In the goods of Phipps, 2 Curt. 368. In the goods of Johnson, 2 Curt. 341.

(1) In the goods of Hill, 1 Robert. 276.

(m) In the goods of Donaldson, 2 Curt. 386.

(n) Cited per curiam, 2 Curt. 339. 3 Curt. 530.

(0) In the goods of Lay,2 Curt.375.

may make

naval expedition, it was held that his case fell within the spirit of the exception in the Act (p).

As to the construction of the words “mariner or seaman" in the exception; it has been held that the purser of a man-of-war is within this description, and it should seem that it includes the whole service, applying equally to superior officers up to the commander-in-chief, as to a common seaman, being at sea (q). And it has also been held to apply to merchant seamen (r). It has been held by Sir H. Jenner Fust, on motion (s), Persons within

'the exception that, notwithstanding the general provisions of the Act, a

their Wills minor may make his Will if he falls within the exception as

though under being “in actual military service, &c.;” the words of the age. clause being “any soldier, &c.”

With respect to the making and probate of the Wills of petty officers and seamen in the Queen's service, and the non-commissioned officers of marines, and marines serving on board a ship in the Queen's service, several statutes have been passed containing regulations calculated to counteract the frauds and impositions to which they are liable. These, however, have been repealed, and other provisions for the Provisions of

stat. 11 G. 4 & same purpose substituted, by the statute 11 Geo. IV., and 1 W. 4, c. 20,

as to Wills of 1 Wm. IV.c. 20, which will be pointed out, when the subject seamen. of the probate of Wills occurs (t).

It must be observed, that the new statute of Wills does not extend to any Will made before Jan. 1, 1838; and as cases of nuncupative Wills made at an earlier date may still arise, it is thought expedient to state the enactments of the Statute of Frauds and the authorities relating to them. By section 19 of that statute, it is enacted, “That no Statute of

Frauds, s. 19 : 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

(P) In the goods of Austen, 2 51. In the goods of Milligan, 2 Robert. 611.

Robert. 108. (9) In the goods of Hayes, 2 (8) In the goods of Farquhar, Curt. 338,

4 Notes of Cas. 651, 652. (r) Morrell . Morrell, 1 Hagg. (t) See post, Pt. 1. Bk. iv.

Ch. IV.

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how a nuncu- were present at the making thereof, nor unless it be proved pative Will must be made. that the testator, at the time of pronouncing the same, did

bid the persons present, or some of them, bear witness that such was his Will, or to that effect; nor unless such nuncupative Will were made in the time of the last sickness of the deceased; and in the house of his or her habitation or dwelling, or where he or she hath been resident for the space of ten days, or more, next before the making of 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.” S. 20, it must be put into

And by section 20, “After six months passed after the writing within speaking of the pretended testamentary words, no testimony six days : otherwise it shall be received to prove any Will nuncupative, except the cannot be

said testimony, or the substance thereof, were committed to proved after six months.

writing within six days after the making of the said Will." 8. 21, when to

And by section 21, “No letters testamentary, or probate be proved.

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 Citation of

in the widow or next of kindred to the deceased, to the end next of kin, &c.

they may contest the same if they please.” S. 22, written

And by section 22, it is further enacted, “That no Will, nal property in writing, concerning any goods or chattels, or personal pealed or al- estate, shall be repealed, nor shall any clause, devise, or tered by a

bequest therein, be altered or changed by any words, or will nuncupative disposition. by word of mouth only, except the same be in the life of the

testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be

so done by three witnesses at the least.” Stat. 4 Ann.

With respect to the witnesses required by the 19th section, it is declared by the statute 4 Ann. c. 16, s. 14, that “all such witnesses as are and ought to be allowed to be good

witnesses upon trials at law, by the laws and customs of this What witnesses realm, shall be deemed good witnesses to prove any nuncuare to be deemed good.

pative Will, or any thing relating thereunto.”

Will of perso

not to be re

c. 16.

“ Thus," says Mr. Justice Blackstone,“ hath the Legisla. Summary of ture provided against any frauds in setting up nuncupative restrictions on Wills, by so numerous a train of requisites, that the thing Wills, by Mr.

J. Blackstone. itself has fallen into disuse, and it is hardly ever heard of, but in the only instance where favour ought to be shown to it, when the testator is surprised by sudden and violent sickness. The testamentary words must be spoken with an intent to bequeath, not any loose idle discourse in his illness; for he must require the by-standers to bear witness to 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 surprised ” (u). The words of the Statute of Frauds, with respect to the statute as

to nuncupative nuncupative Wills, have always been construed strictly, and Wills con all its provisions must be completely complied with (x). strued strictly : Accordingly the enactment, that no nuncupative Will shall be good that “is not proved by the oath of three witnesses,” has been held to make such a Will invalid, where one of three witnesses present died before he could make proof (y).

The statute is also strictly construed with respect to its Strictness as requisition, that the testator shall bid the persons present, testium.

to the rogatio or some of them, bear witness that such is his Will, or to that effect; which is technically called the rogatio testium. Thus, where a mother in her last sickness called several of her children, and the daughter of the person with whom she lodged, to her bedside, and declared her wishes as to the

(u) 2 Black. Comm. 501. An instance of a nuncupative Will being established, may be found in the case of Freeman v Freeman, 1 Cas. temp. Lee, 343.

(x) Bennett v. Jackson, 2 Phil

lim. 190. Lemann v. Bonsall, 1
Add. 389.

(y) Phillips v. St. Clement's
Danes, 1 Abr. Eq. Cas. 404; also
reported in Swinb. 6th, edit. 60.

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