O'Neill v. Smith

Robinson, J., delivered the opinion of the Court. Whatever may have been the earlier rule of law in regard to nuncupative wills, at a time when the art of writing ivas known to comparatively a few persons, it was -well settled, we think, even prior, to the Statute of Frauds, that to be valid, “ they must be made in the last extremity, when the testator did not expect to> recover, and had not time to make a more deliberate will or a -will in writing.” 1 Redfield on Wills, 185. So early as the. reign of Henry VIII, a nuncupative will was defined by Perkins to be properly when the testator “ 1 ieth languishing for fear of sudden death, darest not to stay the writing of his testament, and, therefore, he prayeth his curate and others, his neighbors, to bear witness of his last will, and declareth by word what his last will is,” and this definition is substantially adopted in Bacon’s Abridgment, Wood on Conveyancing, and other standard writers. By the Statute of Frauds, further restrictions were thrown around the making of wills of this character, and to such an extent, says Sir William Blaciistone, “ has the Legislature provided against any frauds in setting up nuncupative wills, by so numerous a train of requisites, that the thing itself has fallen into disuse, and hardly ever heard of, but in the only instance where favor ought to be shown to it, when the testator is surprised by sudden and violent sickness.” Now, the 306th section of Article 93 of our Code, is but a transcript of the 19th section of 29 Charles II, and the words “last .sickness” in the Code are to be interpreted and ⁵⁷³ understood according to the well known construction put upon these words under the British statute.

We do not purpose at this late day to review the law on this subject, because this has already been done in a very satisfactory manner by Chancellor Kent, in Prince vs. Hazleton, 20 Johns., Rep., 502, a case involving a large amount of property and argued on both sides by distinguished counsel. After a well considered examination of the authorities, the Chancellor says: “ I feel myself warranted in concluding, that a nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. * * The last sickness, in the purview of the statute, has been always understood to apply to the last extremity mentioned in the books, and it never was meant to uphold these wills, made when there was no immediate apprehension of death, and no inability to reduce the will to writing.” These views are fully adopted in Priscilla Yarnall’s Will, 4 Rawle, 46 ; Haus vs. Palmer, 21 Penn., 296 , and in fact in almost every State wdiere the 19th section of 29 Charles II, has been