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gislature has provided 'agaifist frauds in setting op nuncupative wills, by so numerous a train of requisites, that the thing 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, and, as the same learned writer observes, not in any loose, idle discourse ; for he must require the by-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 surprise. To which we may add, that no such will is available, where the es. tate thereby attempted to be bequeathed exceeds the value of 30/. 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 referring to the 2 Ann. c. 16. he will find it therefic^onoJT1" enacted, that « all such witnesses as are and ought to be allowed witnesses to to be good witnesses upon trials at law, by the laws and customs nuncupative of tnis realTM' shall be deemed good witnesses to prove any nuntestament. cupative will, or any thing relating thereto." And of the It is to be remarked, that the words in this clause are, that evulence^ "no nuncupative will shall be good that is not proved by the oath* 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 witT [ 457 ] nesses. Dr. Shallmer,(m) by will in writing ?gave 200/. 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 200/. more towards the charges of building their church ; at which, though Dr. Shallfner was at first disturbed, yet afterwards he said he would give it, and bid Prew take notice of it; and the next
(n,) Phillips v. the Parish of St. Clement Danes, 1 Eq. Ca. Abr. 404
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 200/. 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 application of the parish to the Commissioners of Charitable Uses, and producing these memorandums and proofs by Mrs. Shallmer and her maid, they decreed the 200/. But on exception taken by the executors, the decree was discharged of this 200/. 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 cath 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 appears by the case of Verhorn v. Brewen,(n) 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 mil, and another person executor; to whom he *was accountable, and not to the * £ 453 i 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 shown, that no nuncupa- ^. , , . . Of altering a.
tive disposition, though made and published with the due formali- written will
ties prescribed by the 19th and 20th sections, can make any al- by a nun.cl,
teration in a written will, by reason of the restriction in this par- sition.
position. Thus, where one G. S.l 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, a new will, 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 so given and specified in that part, may be devised by a nuncupative codicil, and so the will might be altered contrary to the words of the statute; but it was answered by the court, that if such part of a will were so obtained, it was no part of the will, and so such codicil would be no alteration of what was not, but would be an original will for • [ 459 ] •so much. And they further said, that if A be possessed of an estate of 1000/. and by will in writing gives a part of it, as 500/. to B, he might give the residue by a nuncupative will, so as he did not change the executor.
It has been held, that a disposition, not valid as a nuncupative will, for want of the observance of the formalities required by the statute, may be supported as a trust in equity. The case cited in support of which proposition, is that of Nab v. Nab^o) where a daughter, having deposited 180/. in the hands of her mother, made her will, and gave several legacies, and made her mother executrix, but took no notice of the 180/. but afterwards, by word of mouth, desired her mother, if she thought fit, to give the 180/. to her niece; and on a bill filed by the niece for this sum, if was proved in the cause, for the plaintiff, that the daughter, after making the will, had said, she had left her niece 180/. as a legacy, but the parol declaration of tfie daughter ap
.l Sir Thomas Raymond, 334, before the Delegates at Sergeant's Inn, December 9,1679. ,
(o) 10 Mod. 403. Gilb. Eq. Rep. 146.
peared only by the answer of the mother upon oath. It was agreed, that this was not good as a nuncupative will, being above 30/. and not reduced into writing within six days after the speaking, as the statute of frauds requires. But the mother was decreed to be a trustee for the niece. I find no other case that comes up to this doctrine, and, perhaps, the courts will not, hereafter, if the point should arise, be disposed to be guided by a single precedent, so little in unison with that feeling of regret which they uniformly express m being forced into a departure from the plain and wholesome provisions of the statute, by the stream of overbearing authorities.
By the 23d section of this statute, soldiers in actual military Of soldiers' service, and mariners and seamen at sea, are excepted out of the ^Jl>S^;na clauses restraining the testamentary power, in respect to personal estate. Soldiers may still, therefore, make nuncupative wills, or revocations of personal estate, and dispose of their goods, wages, and other chattels, without the *forms required by the * [ 460 ] law in other cases. And by statute 5th William 3, c. 21, sect. 6, the probate of any common soldier, was and continues to be exempted from the duties imposed by that act. With respect to seamen, however, the power of making nuncupative wills left to them by the statute of frauds in the unfettered state in which it stood previous to that statute, has been laid under restrictive provisions by subsequent statutes, for their better security and protection against fraud and imposition. The regulations which regard this object will be found in the Appendix to this book in the abstracts of the statutes, 26 Geo. 3, cap. 63, and 32 Geo. S, cap. 34* subjoined to this volume, for the convenience of reference.
BEFORE the statute of 29 Car. 2, wills in writing of real Of the 6lh estates might be revoked by parol; and, indeed, after that sta- ^c"!""!* tute, such power would still have existed, (as we may conclude vocations of in analogy to the doctrine of holding written agreements revoka- °f ble by parol notwithstanding the 4th section) if by the 6th and 22d sections, special provisions had not been made to prevent it. Thus it is held in regard to the 12 Car. 2, c. 24, giving power to
the father to appoint a guardian of his child, that the appointment under that statute may still be revoked by a will, without any attestation; because no express provision was made against it by that statute.(^)
Much has been said on the difference in the penning of the 5th section of the statute respecting the execution of a will of lands, and of the succeeding section, which prescribes and restricts the methods of revocation. At the end of the case of Right v. Price,(9) in Douglass's Reports, the learned Reporter * [ 461 ] 'has added a note, in which he has animadverted upon the difference in the language in the two clauses, which he attributes to inaccuracy jn the composition of the act; and it cannot be denied, that the variation in the terms, where the same principle must have governed, seems hardly explainable, but by imputing a mistake to the legislature. By the 5th section we have observed, that the testator is not required to sign in the presence of the subscribing witnesses, but the subscribing witnesses are called upon to attest in the presence of the testator. Mr. Douglass observes in the note alluded to, that he believes it is universally understood, that, to satisfy this 5th section, a testator must sign in the presence of the witnesses. But by what has been above produced to the reader on this subject, it must have sufficiently appeared to him, that such actual signature, in the presence of the witnesses, is not held to be requisite, and that it is enough, if the testator acknowledges his hand-writing to the signature, or, holding the will in his hand, publishes and declares it to be his will, when the witnesses subscribe their attestations.
By the clause respecting revocations, the subscription of the witnesses is not expressly directed, while, on the other hand, the signing of the testator in the presence of the witnesses, is positively prescribed. The clause runs as follows: " And moreover, no devise in writing of lands, tenements, or hereditaments, nor any clause thereof, shall at any time, after the said four and twentieth day of June, be revocable, otherwise than by some other will, or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same, by the testator himself, or in his presence, and by his directions and consent; but all devises and bequests of lands and
(/,) Doug. 244. (?) Ex parte the Earl of Ilchester, 7 Vez. jun. 348.