II. c. 3, which enacted, that no nuncupative will should be good where the estate bequeathed exceeded thirty pounds, unless proved by three witnesses, present at the making of it, and specially required to bear witness; nor unless it was made in the testator's last sickness, in his own dwelling-house, or where he had been previously resident ten days at the least, except becoming sick from home, and dying without returning, and reduced to writing within six days after the testator's death, and not proved till fourteen days after his death, and the widow or next of kin has been summoned to contest it. This regulation has been incorporated into the statute law of this country; (c) but even these legislative precau tions were insufficient to prevent the grossest frauds and perjury, in the introduction of nuncupative wills. (d) And as a further and more effectual remedy, the New York Revised Statutes (e) declared that no nuncupative or unwritten will shall be valid, unless made by a soldier while in actual military service, or by a mariner while at sea; and every will of real or personal property must be

(c) It was adopted as the statute law of New York, until 1830, and it was reenacted in Ohio, in 1831, and in New Jersey, in 1795, and in the Mass. Revised Statutes, in 1836, and in Indiana, in 1818; and in Georgia, the original statute of Charles II. is assumed and adopted as the law of the state. So in North Carolina. But by statute in North Carolina, all wills in writing of personal property after the 4th of July, 1841, are to be executed with the same formalities as wills of real estate, except nuncupative wills. In many of the other states besides those mentioned in the text, as in Massachusetts, Vermont, Rhode Island, Delaware, Arkansas, Missouri, Michigan, Mississippi, South Carolina, and Wisconsin, the same form of execution is requisite in wills of personal and real estate.2 In Pennsylvania, where the English statute is followed, it is held, that a nuncupative will is not good unless made when the testator is in extremis, or has been overtaken by sudden and violent illness, and has no time or opportunity to make a written will. The doctrine of the case of Prince v. Hazleton, in 20 Johns. 502 (and which case was before the New York Revised Statutes had nearly abolished nuncupative wills), seems to have been approved and adopted. Case of Priscilla E. Yarnall's Will, 4 Rawle, 46.

(d) See the case of Prince v. Hazleton, 20 Johns. 502, which affords memorable proof of such practices.

(e) Vol. ii. 60, sec. 22. Ibid. 63, sec. 40.3

2 Sutton v. Chenault, 18 Geo. 1.

8 The origin and history of nuncupative wills discussed. Ex parte Thompson, 4 Bradf. (N. Y.) 154.

4 A mariner at sea, in his last sickness, within an hour of his death, being inquired of what disposition he wished made of his property, replied, in the presence of four witnesses, "I wish my wife to have all my personal property." He was in sound mind and memory at the time, and under no restraint. Held, that this was a good nuncupative will. Hubbard v. Hubbard, 52

VOL. IV.

equally subscribed by the testator, or acknowledged by him in the presence of at least two attesting witnesses. In Pennsylvania, also, two witnesses are required to the attestation of a will of personal as well as of real estate. They follow, in this respect, the ecclesiastical law of England. (f) So, in Virginia and Tennessee, two witnesses are required to a will of chattels. (g) In South Carolina, the Act of 1824 requires that wills of personal estate be attested by three witnesses; and it is a general rule of law, and one recognized in South Carolina, that a will of personal property, which operates upon the property of the testator existing at his death, must be

executed according to the requisites of the law existing at 518 that time. (a) Lord Loughborough had long ago per

ceived the importance of such a wise provision, and had expressed a wish that wills of real and personal estates were placed under the same restrictions. (b) It is now required in the English

(f) Lewis v. Maris, 1 Dall. 278. Swinburne on Wills, Part IV. sec. 24, p. 293. (g) Redford v. Peggy, 6 Rand. 316. Suggett v. Kitchell, 6 Yerger, 425. In Tennessee, they follow generally the rule of the English law, that a will of chattels is liberally construed, and must be executed with like solemnity. It need not be signed or sealed by the party. The authentic wishes of the testator as to the disposition of his property is sufficient. McLean v. McLean, 6 Humph. 452. Williams on Execu. tors, vol. i. 54.

(a) In the matter of Elcock's Will, 4 M'Cord, 39. The English law is very loose as to the nature of the instrument disposing of personal property; and marriage articles, promissory notes, assignment of bonds, letters, &c., though not intended as wills, yet, if they cannot operate in another way, may be admitted to probate as wills of personal property, provided the intention of the deceased be clear that the instrument should operate after his death. 2 Hagg. E. 247.

(b) 5 Vesey, 285. The better to guard against the undue influence to which per sons are liable in their last sickness, the law of Scotland will not allow, by what is termed the law of death-bed, the alienation of land to the prejudice of the heir, if made by a man in his last sickness, and within sixty days of his death. 1 Bell's Com. 84-99.

12 Barb. (N. Y.) 148. But where a mariner by profession, made his will on board a steamer in the Delaware River, which steamer was towing a vessel in which he had engaged passage to Chagres, there to take command of a lighter to be employed in the river, it was held, that, with reference to the execution of the will, he was not a mariner, not being a mariner in service at the time, and not being on his way to engage in that business. Warren v. Harding, 2 R. I. 138. The captain of a coasting vessel, while she is on her voyage and at anchor in the mouth of a bay, where the tide ebbs and flows, may make a nuncupative will. Hubbard v. Hubbard, 4 Selden, 196. The parties setting up a nuncupative will must show affirmatively that the testator, at the time of pronouncing his will, bade some of the persons present bear witness that such was his will. Sampson v. Browning, 22 Geo. 298. See Ridley v. Coleman, 1 Sneed (Tenn.), 616; Lucas v. Goff, 33 Miss. (6 Geo.) 629.

ecclesiastical courts, that a nuncupative will be proved by evidence more strict and stringent than that applicable to a written will, even in addition to all the requisites prescribed by the statute of frauds. (c) 1

At common law, an infant could act as an executor at the age of seventeen; though this is now altered in England, by the statute of 38 Geo. III. c. 87; and an alien could be an executor. The executor might act without letters testamentary; and if one of several executors renounced, he might afterwards come in and administer; though the Court of Chancery might exact from him security. An executor of an executor succeeded to the trust of the first executor. (d) But by the New York Revised Statutes, (e) some judicious improvements are made upon the antecedent law. It is declared, that infants under the age of twenty-one years, and . aliens, not being inhabitants of the state, are not competent to serve as executors; nor is a married woman entitled to letters testamentary, unless with the consent in writing of her *519 husband; and in that case he is deemed responsible for her acts jointly with her. A non-resident executor is required to give the like bond as is required by law of administrators; and on the objection of a creditor, or other person interested in the estate, the surrogate, on reasonable cause shown, may require the like security from any executor, either before or after letters testamentary are granted. If letters be granted upon any will, the executors not named in them cannot act until they appear and qualify; nor can an executor interfere with the estate, except to pay funeral charges, before letters testamentary are granted; and the power of an executor to administer on the estate of the first testator is abolished. These provisions are calculated to secure fidelity and increase confidence in the execution of a delicate and dangerous trust.1

(c) Lemann v. Bonsall, 1 Addams, 389. But nuncupative wills are now no longer valid in England, by the statute of 1 Vict. c. 26, except as to the wills of soldiers and mariners in service. Every will must be in writing. In North Carolina, by statute, 1840, wills of personal estate (nuncupative wills under regulations excepted) must be executed with the same formalities as wills of real estate.

(d) Shep. Touch. by Preston, 460, 462, 464.

(e) Vol. ii. 69-72.

1 Verbal directions for drawing up a written will, cannot constitute a nuncupative will. Dockum v. Robinson, 6 Foster, 372.

1 There may be a constructive appointment of an executor. Ex parte McDonnell, 1 Bradf. (N. Y.) 32. Ex parte McCormick, Ibid. 169.

The law of Louisiana, in respect to last wills, is peculiar. Wills, under the code of that state, are of three kinds: nuncupative or open, mystic or sealed, and holographic. They are all to be in writing. The first, or nuncupative estament, is to be made by a public act before a notary, as dictated by the testator, in the presence of three or five witnesses, according to circumstances; and to be read to the testator, and signed by the testator and witnesses; and if the testator be disabled, another person may sign it for him, in his presence, and that of the witnesses, or it may be executed by his private signature, in the presence of three, or five, or seven witnesses, according to circumstances, and they are to subscribe it. The second, or mystic testament, is to be signed by the testator, and sealed up, and presented to a notary and seven witnesses, with a declaration that it is his will; and the notary and witnesses are to subscribe the superscription. The third, or holographic testament, is one entirely written, and signed by the testator, and subject to no other form, and may be made out of the state. The attestation of subscribing witnesses at the bottom will not mar it, for their signatures make no part of the will. (a) No woman can be a witness. to a will in any case; and no other person who takes under 520 the will can be a witness, except it be in the case of a *mystic testament. These prescribed forms are not requisite in the testaments made abroad, of certain descriptions of people. Children cannot be disinherited but for one of ten causes, which are enumerated, and all of which relate to filial disobedience or atrocity in relation to parents. Among those acts are cruelty to the parent, or an attempt on his life, or a refusal to ransom him from captivity, or to become his security when in prison (a). There is a provision made for cases in which the testator or witnesses are too illiterate to write their names; and the regulations in general are complex and singular, (b) and, I should think, not well adapted to

(a) Andrews v. Andrews, 12 Martin (Louis.), 713. Knight v. Smith, 3 Ibid. 163. Langley v. Langley, 12 Louis. 114.

(a) Civil Code of Louisiana, art. 1567–1614.

(b) The Civil Code of Louisiana, on the subject of the execution of wills, is taken from the Napoleon Code. Under that code, the French tribunals construed the law with severe strictness; and unless the testament itself proved, by the terms used in it, an absolute impossibility that there was an omission of the formalities required by the code, the will was annulled. It was at last attempted even to annul a testament for a faulty punctuation! This led to a mitigation of the antecedent rigorous doctrine, and to the establishment of the reasonable principle, that when a clause in a will is

the judgment and taste of the people of the other states in the Union, who have been accustomed to the more simple provisions of the English law. (c)

V. The revocation of a will.

A will duly made according to law, is, in its nature ambulatory during the testator's life, and can be revoked at his pleasure. (d) But to prevent the admission of loose and uncertain testimony, countervailing the operation of an instrument made with the formalities prescribed, it is provided that the revocation must be by another instrument executed in the same manner; or else by burning, cancelling, tearing, or obliterating the same *521 by the testator himself, or in his presence, and by his direction.

This is the language of the English statute of frauds, and of the statute law in every part of the United States. (a)

susceptible of two meanings, it shall have that construction which will give the instrument effect. Toullier, Droit Civil Français, tom. v. 390-416, and particularly No. 430. The same liberal principles of interpretation have been adopted under the same articles in the civil code of Louisiana. Seghers v. Antheman, 13 Martin (Louis.), 73.

(c) Under the rule of equity, that what ought to be done is sometimes considered as done, the execution of a will may be controlled by equitable views of the subject. Thus land, which has been agreed or directed to be sold, is considered as money; money which has been agreed or directed to be laid out in the purchase of land, is considered as land; and, therefore, in equity, money directed to be laid out in land will not pass by will, unless executed as if the property were land; but land directed to be converted into money, will pass by a will competent to pass money. (d) Vynior's case, 8 Co. 81, b.

(a) See the New York Revised Statutes, vol. ii. 64, sec. 42; Griffith's Law Regis

1 Such direction will not operate as a revocation, unless the testator had at the time sufficient capacity to understand the nature and effect of the act, and had it performed voluntarily, and with the intent to effect a revocation. Rhodes v. Vinson, 9 Gill, 169. Perjue v. Perjue, 4 Iowa, 520. Where a testator was sick in bed, and called for his will, and was deceived by one of the legatees who handed him an old letter, which he destroyed, intending to revoke his will, and supposing he had destroyed that, the will was held revoked. Pryor v. Coggin, 17 Geo. 444. White v. Casten, 1 Jones Law (N. C.), 197. See, also, Marsh v. Marsh, 3 Ibid. 77. In Clark v. Smith, 34 Barb. (N. Y.) 140, it was held that a physical act of revocation must concur with the animus revocandi. In Doe v. Harris, 6 Ad. & El. 209, the testator threw his will devising real estate upon the fire, intending to revoke it, but another person snatched it off, a corner of the envelope only being burned. Such other person afterwards promised to burn the will, and pretended to have done so. Held under the statute of frauds not to be a revocation. To the same effect, also, is Kent v. Mahaffey, 10 Ohio St. 204, where a blind testator, intending to burn and destroy his will, was deceived into the belief that it had been thrown into the fire and burned, pursuant to his direction. See Lawyer v. Smith, 8 Mich. 411. Also Smiley v. Gambill, 2 Head (Tenn.), 164, where the opposite doctrine is held, there being no statute to control the question.