Читать книгу The Curiosities and Law of Wills - John Proffatt - Страница 6

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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]

The danger of collusion and conspiracy among those who surround a feeble dying person has taught legislatures to be very strict in placing adequate safeguards around such a one. It was a gross abuse of such an opportunity, in a remarkable case in the twenty-eighth year of Charles II, that led, it is supposed, to the enactment of the Statute of Frauds in the next year.

The case was this:[34] Mr. Cole, at a very advanced age, married a young woman, who during her lifetime did not conduct herself so as to make the old man’s life a placid or a happy one. After his death she set up a nuncupative will, said to have been made in extremis, by which the whole estate was given to her, in opposition to a will made three years before the testator’s death, giving £3,000 to charitable uses. The nuncupative will was proved by nine witnesses; and after examination in the course of a trial, it appeared most of the witnesses were perjured, and Mrs. Cole was found guilty of subornation. It was then that Lord Nottingham said: “I hope to see one day a law that no written will should be revoked but by writing.” He was gratified in seeing such a law the succeeding year. Upon this, Chancellor Kent observed: “I should hope to see one day a law that no nuncupative will should be valid in any case.”[35]

The case in which these words were used was a very curious one, and will be worth while to be stated somewhat fully. We can give no better statement of it than the admirable summary given by that eminent jurist in his opinion, where the subject of nuncupative wills received a thorough discussion. The will was made by a William Jones on the 11th April, 1820, and was as follows: “I now say, as I have repeatedly said before, that I leave all the property I am possessed of to Mary Hazleton; I do this in consequence of the good treatment and kind attention I have received from her during my sickness. She is worthy of it. No other person shall inherit my property. I wish you all in the room to take notice of this.” The will was witnessed by four witnesses. It was finally declared invalid, because it did not appear the testator made it in his last extremity, and as there were so many evidences of undue influence. The facts were as given by Kent: “William Jones was an Irishman by birth and a religious Catholic by profession. He was born in the county of Dublin, in Ireland, and received a school education about thirty years before his death, and which carries us back to the year 1790. He had then living parents, brothers, and sisters, and he was the youngest of the family. He was apprenticed to a house carpenter in the city of Dublin, and served a regular apprenticeship of seven years. When this service expired, he worked as a journeyman for nine or twelve months, and then emigrated to the United States. This brings us in the history of his life to the year 1798, and perhaps that fact may enable us to give some probable solution of the only circumstance that seems (if we except the will) to cast any shade over the memory of this man. I allude to the change of his paternal name, O’Connor, for that of Jones. It does not appear precisely when he changed his name, but I refer it back to that period as the probable time, and presume that he and his family were more or less implicated in the rebellion in Ireland in 1798, in consequence of an ill-fated attempt to effect a revolution in that kingdom. It is probable that he may have emigrated for safety; and, for greater safety, laid down the name of O’Connor, which was then memorable in the Irish annals, on the side of the unfortunate. But be this conjecture as it may, we find him first at New York, then for two years at Savannah, then living for twelve or fourteen years in Cuba, and learning the Spanish language, and where he probably made his fortune. He is next traced on his return to the United States to the cities of Baltimore, Philadelphia, and New York; and in all of them he seems to have had business, pecuniary concerns, and friends. These are the few and imperfect sketches of his biography to be selected from the case, before we find him rich in the fruits of his enterprise, but sick with a disease of the liver, at the boarding-house of Mrs. Fox, in Cherry street, in New York, the latter end of March, 1820.

“Jones, while at the house of Mrs. Fox, claimed to be worth altogether $65,000 in property existing in New York, Philadelphia, Baltimore, and the Island of Cuba; and to show that this claim had pretty fair pretensions to truth, there were actually found at his lodgings, at his death, bank-books showing deposits to his credit in one or more banks of New York to between thirteen and fourteen thousand dollars.

“He had been sick at Mrs. Fox’s about five weeks when he is said to have made the will now under consideration. During that time he had one Ellen Taylor, a colored woman, for his hired nurse; and there was a Mrs. Hazleton, who had rooms and boarded in the same house, who also acted as his nurse. Whether Jones ever saw or heard of Mrs. H. before he came to board there, does not appear, nor have we in the case any distinct lineaments of the character which Mrs. H. sustains, or the business or purpose of her life. She was able, all at once, and without any remarkable display of goodness or any adequate cause, to gain a wonderful ascendancy over the affections of this sick man. If her story be true, and the will genuine, she obliterated from Jones’ breast the sense of friendship, the charities of religion, the deep-rooted traces of national affection, every tender recollection of the ties of blood, of his natal soil, of the school-fellows of his youth, of father and mother, brother and sister, relative and friend. He was persuaded at one nod to pour the accumulated treasures of his varied life into the lap of this mysterious woman—the acquaintance of a day!”

From the manifest evils arising from this kind of wills, legislatures are not disposed to favor them; they seem only adapted to a ruder condition of society than the one we now live in. So, in the Statute of Wills in England, passed in 1838,[36] such wills are declared invalid, except as to soldiers and sailors; and the same is the case in nearly all our American States. But a few States still permit such wills made by persons in extremis, and bequeathing a limited amount of property. They are not permitted in New York, except, as in the English statute, to soldiers and sailors on actual service.[37] They are in California of property to one thousand dollars, and then must be proved by two witnesses, one of whom is requested by the decedent to be a witness; and the will must be reduced to writing within thirty days after death, and proved within six months after the same was uttered.[38]