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very far; and it has been decided, that if the witnesses were within view, and where the testator might, or had the capacity to see them, with some little effort, if he had the desire, though in reality he did not, they were to be deemed subscribing witnesses in his presence." It was further held, that if the testator produced to the witnesses a will already signed, and acknowledged the sig

nature in their presence, it was a sufficient com*516 pliance with the statute; and it was decided to be unnecessary for the testator actually to sign the will in the presence of the witnesses. Nor is it held necessary that the witnesses should attest in the presence of each other, or that they should attest every page or sheet, or that they should know the contents, or that each page should be particularly shown to them. It is necessary, however, that the witnesses should not only be in the testator's presence, but that the testator should have mental knowledge of the fact; and in Right v. Price, where the witnesses attested the will while the testator was corporally present, but in a state of insensibility, it was held to be a void attestation. It is further settled, that the subscribing witnesses need not attest at one time, nor all together. The statute of frauds

Shires v. Glascock, 2 Salk. Rep. 688. Davy v. Smith, 3 ibid. 395. Longford v. Eyre, 1 P. Wms. 740. Casson v. Dade, 1 Bro. 99. Todd v. Earl of Winchelsea, 2 Carr & Payne, 488. Russell v. Falls, 3 Harr. & M'Henry, 457. Edelen v. Hardy, 7 Harr. & Johns. 61. Neil v. Neil, 1 Leigh's Rep. 6. In this last case, the English decisions were carefully reviewed, and it was decided, that the attestation of a will of lands in Virginia, under their statute, which was the same as the statute of 29 Car. II., c. 3, was prima facie a good attestation, if made in the same room with the testator; and that it was prima facie not an attestation in his presence, if not made in the same room.

Stonehouse r. Evelyn, 3 P. Wms. 254. Grayson v. Atkinson, 2 Vesey, 454. Ellis v. Smith, 1 Vesey, jr., 11. White v. British Museum, 6 Bingham's Rep. 310.

• Bond v. Seawell, 3 Burr. Rep. 1773. Doug. Rep. 241.

required, that the witnesses should attest in the presence of the testator; but it did not say that they should attest in the presence of each other, and, therefore, it is not required. They may attest separately, and at different times. It is to be presumed, that the English rules of construction of the statute of frauds, in the execution of the will, apply in those states which have followed the language of the statute; but, in New-York, the alterations which have been mentioned have rendered some of these decisions inapplicable.

At common law, a will of chattels was good without writing. In ignorant ages, there was no other way of making a will but by words or signs. But, by the time

Moore v.

⚫ Cook v. Parsons, Prec. in Ch. 184. Jones v. Lake, 2 Atk. Rep. 176. The witnesses must subscribe in the presence of the testator. King, Prerogative Court of Canterbury, Mich. 1842.

b By the report of the English property commissioners, in April, 1833, they proposed that the testator's signature should be at the foot of the will, and that it should be attested by two witnesses, and that they should subscribe in the presence of each other. They were for abolishing nuncupative wills, except in the case of sailors and soldiers; and the English statute of 1 Victoria, c. 26, followed the suggestion, and declared that every will of real or personal estate must be in writing, and signed by the testator, or by some other person in his presence and by his direction, in the presence of two witnesses at one time; though soldiers and mariners in actual service may dispose of personal estate as before, and such signature must be made or acknowledged by the testator in the presence of the witnesses, and the witnesses are to attest and subscribe the will in the presence of the testator, but no form of attestation is necessary, and every will thus executed is declared to be valid without any other publication thereof. This statute put an end to nuucupative wills, in England, with the reservation only of the two excepted cases, and before this statute the doctrine of the English courts was that the evidence to prove a nuncupative will must be strict and stringent; that the requisitions of the statute must be strictly complied with in every single particular, and especially as to the rogatio testium. The deceased himself was required by the statute to bid the persons present bear witness. Bennett v. Jackson, 1 Phillemore, 190. Lemann v. Bonsall, 1 Addams' Rep. 389. Some of the American cases seem to have indulged in a considerable relaxation of this just and necessary requisition of the statute. Mason v. Dunman, 1 Munford, 456. Parsons v. Parsons, 2 Greenleaf, 298.

• Swinb. on Wills, 6.

of Henry VIII., and especially in the ages of Elizabeth and James, letters had become so generally cultivated, and reading and writing so widely diffused, that verbal,

*517

unwritten, or nuncupative wills, were confined to extreme cases, *and held to be justified only upon the plea of necessity. They were found to be liable to great frauds and abuses; and a case of frightful perjury in setting up a nuncupative will," gave rise to the statute of frauds of 29 Charles 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;

• Perkins, sec. 476. Swinb. on Wills, 32.

b Coles v. Mardaunt, 28 Charles II., 4 Vesey, 196, note. No court has authority or discretion to give effect to a paper as a will, in respect to which the deceased had not finally made up his mind, or which appears not to be intended to be testamentary, or to have a dispositive or revocatory effect. Taylor v. D'Egville, 3 Hagg. E. Rep. 202. Bragge v. Dyer, ibid. 207. The King's Proctor v. Daines, ibid. 218.

• It was adopted as the statute law of New-York until 1830, and it was re-enacted in Ohio, in 1831, and in New-Jersey, in 1795, and in the Mass. Revised Statutes, in 1835, 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 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. In Pennsylvania, where the English

but even these legislative precautions were insufficient to prevent the grossest frauds and perjury, in the introduction of nuncupative wills. And as a further and more effectual remedy, the New-York Revised Statutes 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 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. So, in Virginia and Tennessee, two witnesses are required to a will of chattels. 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 recognised 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 that 518

d

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 not time or opportunity to make a written will. The doctrine of the case of Prince v. Hazleton, in 20 Johns. Rep. 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. Yarnell's will, 4 Rawle, 46.

* See the case of Prince v. Hazleton, 20 Johns. Rep. 502, which affords memorable proof of such practices.

b Vol. ii. 60, sec. 22. Ibid. 63, sec. 40.

• Lewis o. Maris, 1 Dal. Rep. 278. Swinburne on Wills, Part IV., sec. 24, p. 293.

Redford v. Peggy, 6 Randolph's Rep. 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. M'Lean v. M'Lean, 6 Humphreys, 452. Williams on Executors, vol. i. 54.

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time.a Lord Loughborough had long ago perceived 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. It is now required, in the English 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 statutes of frauds.c

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. But, by the New-York Revised Statutes, some judicious improvements are made

In the matter of Elcock's will, 4 M Cord's Rep. 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 will, 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. Rep. 247.

5 Vesey, 285. The better to guard against the undue influence to which persons 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.

• Leman v. Bonsall, 1 Addams' Rep. 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.

Shep. Touch. by Preston, 460. 462. 464. e Vol. ii. 69-72.

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