CHAPTER II.
Form and Requisites of Wills.
A will, from its nature, is the declaration of a man’s mind as to the proper disposition of his property after death. This declaration, as any other fact, is established by evidence, oral or written. It is not the essence of a will that it shall be in writing; the essence is the declared purpose or intention, and this is established, as any other fact in law, by witnesses, or by the written declaration of the testator. In Bacon’s Abridgement, a will, therefore, is defined to be, “A declaration of the mind, either by word or writing, in disposing of an estate; and to take place after the death of the testator.”[28] A distinction was formerly made between a will and a testament; when lands or tenements were devised in writing, it was by will, and when goods and chattels were disposed of, it was by testament; but this distinction is now lost sight of, and the words are used indiscriminately, and we speak of the posthumous disposition of an estate, of whatever kind, as by last will and testament.
Since peculiar perils and obstacles beset a man in his last hours; as much uncertainty and contention have arisen as to his precise purpose and declaration; and as there is a strong and very unusual temptation and opportunity given to designing and evil persons who may surround him, to falsify his intention to their advantage, it has seemed politic and wise to legislatures to prescribe a mode by which wills shall be evidenced and proved, to guard against fraud, imposition, and uncertainty. Hence, in the statutory enactments of every State, there are precise and strict rules laid down on the subject; and as writing is the most reliable and permanent mode of conveying the proof of a person’s intention; and as it is now an acquirement possessed by almost every one, it is now the mode insisted on for embodying the declaration of a man’s last will and testament, with rare exceptions as to verbal wills. We may, therefore, speak of wills in two great classes, viz., Verbal and Written.
Section 1.—Nuncupative Wills.
A nuncupative will is a verbal declaration of a person’s intention as to the manner of disposition of his property after death. Formerly, at an early period, this must have been the usual kind of will in general use, when writing was a rare acquirement. Before the Statute of Frauds, it was of as great force and efficacy (except for lands, tenements, and hereditaments) as a written testament.[29] But as wills of this kind were found liable to great impositions and frauds, and occasioned many perjuries, that statute placed them under several restrictions, except when made by “any soldier in actual military service, or any mariner or seaman being at sea.”[30]
The imminent dangers, the diseases and sudden death which constantly beset soldiers and sailors; the utter inability oftentimes to find the time or the means to make a deliberate or written testamentary disposition of their effects, seem at all times to have made them a proper exception to the operation of a rule which the wisdom of later times has found it expedient, if not absolutely obligatory, to apply to all others. Hence, almost all governments grant this immunity to this class of persons. It was a peculiar privilege of the Roman soldiers, who were exempt when on a military expedition from complying with the strict testamentary law; the privilege, however, was only well established under the Empire, and after a time it was extended to the naval service, and officers, rowers, and sailors were, in this respect, esteemed as soldiers.[31]
Another class of persons formerly permitted to make this kind of will were those who were at the point of death, or as it was termed, in extremis. And in many States this privilege is still granted this class.
For a long period, as far back as a little before the time of Henry VIII, this kind of will was confined to this class of persons.[32] A writer of the time of Henry VIII says: “This kind of testament is made commonly when the testator is now very sick, weak, and past all hope of recovery.” Chancellor Kent says: “This has been the uniform language of the English law-writers from that time to this day, so that it has become the acknowledged doctrine, that a nuncupative will is only to be tolerated when made in extremis.”[33]