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Henry St. George Tucker.

Commentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) online

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is, as we have already observed, not essential to a will of personalty ; it
being sufficient in such wills, that there be satisfactory evidence of the wri-
ting in question being designed to be the last will and testament of the de-
cedent, and not merely a sketch or plan of a will, or the result of wanton-
ness or whim, without any seriously formed intention. The careful folding
and sealing up of the paper, the endorsing it as a will, or depositing it
among papers of importance^ are all regarded as important indicia of the
character of the instrument, as sustaining its claims to be considered in the
light of one of the most serious and important acts of life, and in short as
having all the effect of a more formal publication. On this subject the stu-
dent may consult 1 Rob. on Wills, 120.

A will of personalty is always considered as speaking at the time of the
testator's death, and not at the date of the instrument ; so that after ac-
quired personal property may pass, provided the words of the will are suf-
ficiently large to embrace it. Thus a will made by A, by which he be-
queaths all his slaves to B, will pass not only those which he owned at the
date of his will, but those also purchased by him after its execution. It is
otherwise, as we have seen, in devises of real estate.

With respect to the revocation of wills, I beg leave to refer the student
to what was said under the head of devises, and to the clause of our sta-
tute, which provides, that no will in writing, nor any devise therein of chat-
tels, shall be revoked by a subsequent will, codicil, or declaration, unless the
same be also in writing.* 1 R. C. ch. 104, § 9. It is, indeed, of the na-
ture of every will, considered merely as such, that it should be revocable
at the pleasure of the testator. No testament has any effect until the tes-
tator's death, until which time his intention is said to be ambulatory. And
hence, if there be many testaments, the last overthrows all the former ; and
this, indeed, in some cases, as we have seen elsewhere, even when the dis-
positions of the latter will cannot themselves take effect. But a posterior

* There has been some doubt whether parol testimony, in affirmance or revocation of wills, is not
inadmissible by the statute of frauds ; in the ecclesiastical courts it is al wajs admitted. 2 Ph. E v. 256,
and the cases 1 Phil. Ec.C. 12, 22. 2 Phil. E. C. 177, 173. And in the case of Brady DS.Cubitt, Dou.
31, Lord Mansfield said, that "marriage and the birth of a child afford a mere presumption of revoca-
tion, which, like all other presumptions, may be rebutted bv every sort of evidence." However, in
the subsequent case of Lancashire vs. Lancashire, 5 T.R. 49, Lord Kenyon and the rest of the court
held that such evidence was inadmissible. In all other cases of revocations, implied by operation of
law by acts done by the testator after making his will, such as levying a fine, suffering a recovery, or
executing a feoffment, or any other conveyance of the premises devised by the will.whether perfect-
ed or not, it seems fully settled that no parol declarations in favor of the will can be received to rebut
such implied revocation. 2 H. Bla. 516. 1 Vez. 440, 489. See 1 Saund. 277, et. seq. 5th ed.

51*



402 NUNCUPATIVE WILLS. [ Boax %

will cannot operate a revocation, if the particulars of its dilTeronco from th3
former will cannot be ascertained. '2 Bl. llcp. 937. Cow. 87. It may
not be improper, moreover, to (jualify the general remark as to the revoca-
ble character of wills, by adverting to the principle, that when for valuable
consideration a party binds himself to make a particular disposition by will,
it becomes to that extent a contract, the benefit of which a court of equi-
ty will secure to the person who has an equitable right to demand it. This
subject will be resumed when we come to consider the doctrines of courts
of equity.

Connected with the subject of written' wills is the doctrine of codicils.
A codicil is a supplement to a will, annexed to it by a testator, and to be
taken as part of the same, either for the purpose of explaining, or altering,
or adding to, or substracting from, its former dispositions. 2 B. C. 500.
It may be annexed to the will actually or constructively. It may not only
be written on the same paper, or attached to, or folded up with it, but may
be written on a different paper, and deposited in a different place. Toll. 4.
If atta-clted to a devise of lands, it can have no effect to revoke or modify
the devise, u-nless it be executed with the solemnities required in a will of
lands. I R. C. ch. 104, § 3. But it has been said that a codicil to a will
of personalty may be either written or nuncupative, provided (if nuncupa-
tive) it merely supplies an omission in the instrument. Toller, 6. Yet a
nuncupative codicil cannot revoke a written will. 1 R. C. ch. 104, § 9. A
codicil of personal estate must be authenticated as a will of personal
estate.

Though a codicil, however, partakes of the character of a will, yet in
some important particulars it is very different. Thus, a prior will is re-
voked by a subsequent will, the provisions of which are clearly inconsistent
with it, and the two wills are not construed together as one instrument.
But the making of a subsequent codicil does not invalidate the will, or a
prior codicil, except so far as that is inevitable ; for codicils, however nu-
merous, are all construed together as one instrument, and may be all effec-
tual. 1 Vez. 187. Roper on Wills, 34. Hence, if by my will I bequeath
my slave John to A, and by my codicil I devise the same slave to B, here
it would seem A and B would take a joint interest. But if the bequest to B
had been by a subsequent will, instead of a codicil, it would have been a
revocation in toto of the bequest to A. I should therefore presume it pru-
dent, if not absolutely essential, that every instrument intended as a codicil
should upon the face of it be so expressed to be, lest it may work a revo-
cation without being so designed.*

Again : It is the pecu'liar province of a will, to appoint an executor ; so
much so, indeed, that we are told the instrument is an incomplete will if
no executor be appointed. 2 B. C. 503. With a codicil, however, the
principle is reversed. In strictness, an executor cannot be appointed by a
codicil, though another may be substituted for him who is appointed by the
will. See Jac. L. D. citing Burns' Ecc. Law.

A nuncupative will is a testamentary disposition of chattels, which de-
pends upon oral evidence only, the same not being reduced to writing, but
being declared by the testator in extremis as and for his last will.f Anterior

*"A coJicH necessarily supposes a former will, of which (subject to sppcial and rare exceptions) it
becomes a part not only wnen it expressly refers thereto, but generally if the will and codicil may



stand together they are to be considered as parts of the same instrument, and the codicil is a repub
lication of the will. 2 Vez.jr.632. 3 Vez. 110. 1 Meri. 294. 7 Vez. I'Jl. When a testator has lef.
two inconsistent will.s, and also a codicil, the codicil operates as a republication of that to which it
releis, a.id as a revocation ot the other. And where the codicil in terms refers to one and there is
no latent ambigniiy evidence cannot be admitted to prove a mistake as to the reference. 4 Vez.616.
1 Adams, 39. 7 T. R. 149." 1 Hoovenden's Supp. 116.

11M*53 ^*'®'''®'' ^'°^'^^ '=^" ^^ emancipated by nuucupative will ? See 3 Leigh, 14S. 1 R. C. clx



CHAP. 27.] NUNCUPATIVE WILLS. 403

to the statute of 29 Charles II. ch. 3, when the art of writing was less uni-
versal than at present, wills of this description were very much in use, there
being no provision, either of common law or statute, which required a will
of personalty to be in writing, or prescribed any particular forms for the ex-
ercise of the power of bequeathing. But the frauds and perjuries which
attended this species of testament, gave rise to tliat salutary statute, which
has been followed in substance in our own act. 1 R. C. ch. 104 § 7.
This act provides,

1. That no nuncupative will shall be established unless it be made in the
time of the last sickness of the deceased. What shall be deemed to have
been the last sickness, seems to have ^een much discussed in the case of
Prince vs. Hazleton and wife, 20 John. R. 502, in reference to the ques-
tion, whether these terms import merely the sickness immediately preced-
ing the death of the testator, or imply the last extremity of that sickness of
which mention is made in the books. As if a testator were seized with a
fever and lingered for many weeks, but continued in his senses, and in the
commencement of the disease, while yet in no apparent danger, and while
there was no inability to reduce his will to writing, he were to make a nun-
cupative will: would such a will be good? In delivering his opinion in
the case above cited, the distinguished Chancellor Kent observes " that
upon a review of all the authorities, he felt himself warranted in concludino-,
that a nuncupative will is not good, unless it be made by the testator in ex-
tremis, or when he is overtaken by sudden and violent sickness, and has
not time or opportunity to make a written will. The last sickness is under-
stood to apply to the last extremity, and the statute never was meant to up-
hold a will made when there is no immediate apprehension of death, and
no inability to reduce it to writing."

2. The act further provides, that no nuncupative will shall be valid unless
made at the testator's dwelling, or where he has resided ten days preced-
ing, except where he is taken sick from home, and dies before his return.
And though a person was very unwell when he left home, yet being taken
after he left home very dangerously ill, and dying, his case was held to be
within the acL 4 H. & M. 91, &c.

3. It is also enacted, that " if the value of the estate exceeds thirty dol-
lars, the will shall be void unless it be proved by two witnesses that the tes-
tator called on some person present to take notice or bear testimony that
such is his will, or words to the like import:"* and it will not suffice that
one witness proves the words at one time, and another at a different time.
6 Mun. 123.

4. It is provided, that the testimony establishing a nuncupative will, or
the substance thereof, must be committed to writing within six days after
making the will, or the will must be proved within six months : for after
six months no testimony will be received to prove it, unless it was reduced
to writing within six days. But though a distinct and independent part of
a nuncupative will be omitted in reducing the will to writing, yet the resi-
due is not thereby vitiated. 4 H. & M, 91.

5. No nuncupative will can be proved within fourteen days after the tes-
tator's death, nor until the widow and next of kin have been summoned to
contest it. 1 R. C. ch. 104, § 18.

6. Soldiers in actual military service, and mariners, or seamen being at
sea, are excepted out of these provisions, and their nuncupative wills being
thus exempted from the ceremonies required as to such wills generally,
they may now dispose of their whole personal estate by nuncupative will
as others might have done before the statute. But this does not extend to

* See 1 Mun. 456, Jhe case before referred to, where notes for a written will were set up as a good
,nuDcupative will.



404 WILLS. [books.

render valid a will of lands made by them, for no nuncupative will of lands
can under any circumstances be valid.

"Thus hath 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 is hardly ever heard of, but in the only instance
where favor ought to be shewn to it, when the testator is surprised by sud-
den and violent sickness. The testamentary words must be spoken with
an intent to bequeath, not any loose idle discourse in his illness ; for he
must require the by-standcrs to bear witness of such his intention : the
will must be made at home, or among his family or friends, unless by un-
avoidable accident, to prevent impositions from strangers : it must be in
his last sickness; for if he recovers, he may alter his dispositions, and has
time to make a written will : it must not be proved at too long a distance
from the testator's death, lest the words should escape the memory of the
witnesses ; nor yet too hastily and without notice, lest the family of the
testator should be put to inconvenience, or surprised."

2. We proceed to enquire, in the second place, who may make a valid
will of personalty, or rather who is incapacited from doing so ; for herein
the law is only prohibitory : the rule being general, that all persons may
make a valid testament except those who are under a special incapacity.
This incapacity arises from want of sufficient discretion ; from want of free
will ; and from condemnation to death.

1. Under the first of these heads, are to be placed infants under the age
of eighteen years. For although no person under the age of twenty-one
years can make a valid devise of lands, yet our law expressly enables an in-
fant of eighteen to dispose of his chattels ; thus putting an end to former
doubts as to the age at which this power exists. 1 R. C. ch. 104, § 6. Yet
whatever be his age, if the testator have not sufficient discretion, the want
of it will overthrow his testament. He must be compos mentis, or possess
the animum testandi. Therefore "madmen, or otherwise no7i compotes,
idiots or natural fools, persons grown childish by reason of old age or dis-
temper, such as have their senses besotted with drunkenness ; all these are
incapable, by reason of mental disability, to make any will so long as such
disability lasts. To this class also may be referred such persons as are
born deaf, blind, and dumb ; who, as they have always wanted the common
inlets of understanding, are incapable of having animum testandi, and their
testaments are therefore void.

2. "Such persons, as are intestable for want of liberty or freedom of
will, are by the civil law of various kinds ; as prisoners, captives, and the
like. But the law of England does not make such persons absolutely in-
testable ; but only leaves it to the discretion of the court to judge, upon
the consideration of their particular circumstances of duress, whether or no
such persons could be supposed to have liberum animum testandi. And,
with regard to feme-coverts, our laws differ still more materially from the
civil. Among the Romans there was no distinction ; a married woman was
as capable of bequeathing as a feme sole. But with us a married woman
is not only utterly incapable of devising lands, being excepted out of the
statute of wills, but also she is incapable of making a testament of chattels,
without the license of her husband. For all her personal chattels are ab-
solutely his; and he may dispose of her chattels real, or shall have them
to himself if he survives her : it would be therefore extremely inconsistent,
to give her a power of defeating that provision of the law, by bequeathing
those chattels to another. Yet by her husband's license she may make a
testament ; and the husband, upon marriage, frequently covenants with her
friends to allow her that license : but such license is more properly his as-
sent: for, unless it be given to the particular will in question, it will not be



CHAP. 27.] WILLS.



405



a complete testament, even though the husband beforehand hath given her
permission to make a will." Yet it shall be sufficient to repel his general
right of administering upon her effects ; and administration shall be grant-
ed to her appointee with the testamentary paper annexed. So that, in re-
ality, she does not make a will, but only something like a will operating in
the'nature of an appointment ; the execution of which the husband by his
bond, agreement, or covenant, is bound to allow. 2 B. C. 499.

To this general denial of the power of a feme-covert to make a will of
personalty, there are several important exceptions ; for a feme-covert exe-
cutrix or administratrix, may, even without her husband's consent, make
her will of the goods which are in her possession as such. So also a feme-
covert having pin money or separate maintenance may dispose of the sav-
ino-s thereof by testament; for where the husband stipulates that personal
property may be enjoyed by the wife separately, it must be so enjoyed with
all its incidents, of which the jus disponendi is one. 3 Br. Ch. Rep. 8.
And where she has power over the principal, she must necessarily have it
over its produce and accretions; 2 Vern. 535; as over the increase of
slaves held as her separate property ; and though, as Mr. Blackstone says,
the testamentary paper does not operate strictly as a will, but as an ap-
pointment, yet it is of a testamentary nature, and must be proved as such.
See Doug. 707. 3 Atk. 156. 2 Br. Ch. Rep. 392.

3. Though by our law there is no forfeiture for treason or felony ; yet if
the traitor or felon be sentenced to death, his estate shall descend and pass
in like manner as is directed in case of persons dying intestate. Hence it
is obvious that he cannot make a will, and that even a prior will is, by his
conviction, sentence, and execution, absolutely revoked. 1 R. C. ch. 169,
§ 56. If the felon be sentenced to the penitentiary, his estate is placed in
the hands of a trustee with the power of an administrator, and after the ex-
piration of the term of confinement, is directed to be delivered over to him.
1 R. C. ch. 171, § 64. There has been no decision as to his power to make
a will when he dies during confinement. As, however, it is not taken from
him, I should presume it would exist.

The will of a felo de se is valid by our law ; and his estate passes as if
he had died from any other cause. 1 R. C. ch. 169, § 58.

We shall next remark, that though this power of disposition of chattels
by will was in the case of a decedent, who left a wife or children, origin-
ally restricted to a part of his goods, yet for many centuries this restriction
seems to have been removed, and the deceased might, by the common law,
as it subsisted at the time of the settlement of these colonies, dispose of
the whole of his chattels by will. See 2 B. C. 492.

So far, indeed, is the principle carried, that in Lightfoot's Executors and
al. vs. Colgin and wife, (5 Mun. 42,) it was adjudged that a wife has not
such an interest in that portion of her husband's personal property to which
she may be entitled on his dying intestate, or on her renouncing his will,
as that an absolute and irrevocable though voluntary deed, executed by
him, can be considered as a fraud on her rights : nor is it to be considered
a will in disguise, though he reserve the interest, possession, and control
to himself during life. See on this subject 1 Vez. 236. 1 Vern. 100. 2
Vern. 277.

On this power of disposition of his chattels which existed at common
law, there is then no limitation in Virginia, except that which arises from
their liability for the debts of the testator, and tha'f which grows out of the
26tli section of the act of wills. 1 R. C. ch. 104. That provides, that
"where any widow shall not be satisfied with the provision made for her
by the will of her husband, she may, in the manner prescribed by the act,
declare that she will not accept or lake the provision made for her by such



406 WILLS. [ BOOK 2.

will, or any part thereof, and thereupon she shall be entitled to one-third of
his slaves for life, and such portion of his other j)ersonal estate as if he had
died intestate, to hold to her as her absolute property. But every widow
not niakini,' a declaration within the time aforesaid, shall have no more of
her husband's slaves and personal estate than is (riven her by his will."^

AVhere there is a partial j)rovision made for the wife, the construction of
this clause is sufiiciently obvious. But suppose the husband makes no
provision whatsoever by his will for his wife, shall he be entitled to her
thirds without a renunciation ? On the one hand, it has been said that a
renunciation is a solecism, where notliing is left to her; that it is absurd
to require her to declare that she will not accejjt the provision of the will,
or any part of it, when in truth it contains no provision for her ; and that
such a measure would be useless and not consonant with the spirit of the
Jaw, which merely intended to conlino her to one or the other, and to pre-
vent her having- a double portion by taking both under the will and against
it. On the other hand, it has been said that the husband's complete power
over his personal property existed by common law, and still exists, except
so far as it is impaired by this section ; that the law merely intended to em-
power the wife to control it so far as respects a portion of the personal es-
tate, if she chose to exert that power; that where it is not exerted, her ac-
quiescence is presumed, whether there be a partial provision for her or not;
that if the case of a will in which there is no provision for her, be within
this clause, the renunciation is of course necessary: if it be not within this
clause, then there is no restriction upon the husband's total disposition of
his estate, since the only restriction is to be found here ; that the conse-
quences would be mischievous, if at any remote period the wife was per-
mitted to assert her claim, and that one great object of the law was to as-
certain, within the period limited, what was to be the mode of distribution
of the estate, that the executor might know whether the widow was to have
a share or not ; that an attentive examination of antecedent laws would
confirm this reasoning; and lastly, that the widow has no right to any por-
tion of her husband's personalty, unless he gives it by will, or she can claim
it under this clause ; and that she can make no claim under this clause,
without the prerequisite declaration, as its concluding terms emphatically
declare. The latter opinion has hitherto prevailed, and it has been decided
accordingly, that though the husband make no provision whatever for the
wife, she is without remedy, unless she makes her declaration within the
year. It was also in the same case decided, that where a declaration is
required, the death of the widow before the expiration of the year does
not excuse it ; for the right cannot vest until the declaration is made ; the
distinction being well established between conditions upon which estates
or rights are to be created, and those by which they are to be defeated.
•The act of God in the former does not excuse, in the latter it does. Ray-
an vs. Rayan, Winchester chancery court, 18'24.

The declaration of the widow may be made before the general court, or
court having jurisdiction of the will, or by deed executed in the presence
of two witnesses.

Where such a declaration is made, the wife, although there are no chil-
dren, receives but one-third of the slaves to hold for life. Yet if the testa-
tor had died intestate, she would in such case have had one-half of the
slaves. See § 26.

When the widow rerfbunces the will, the law says she shall have one-
third of all the slaves whereof her husband died possessed ; without except-
ing the responsibility for debts. Yet it seems to be generally understood

*Taking administration with the will annexed does not amount to an election to take under tjie
M^iU. 2 Leigh, m.



CHAP. 27.J WILLS. 407

that the widow in such case takes only a third of what remain after all the
debts have been paid ; for there can be no assignable reason for putting
her in a better situation than if her husband had died intestate. See 5
Mun. 75.

Fourthly. We proceed next to consider, in what manner testaments of
personal property may be avoided. And here it may, in the first place, be
remarked, that if a will be made by a person laboring under any of the
incapacities before mentioned, it may be avoided by the establishment of
that fact before the court of probate, or by M'ill in equity, according to the
circumstances, as has been more fully explained in the lecture on devises.
Secondly ; in like manner, if the will be obtained by fraud, misrepresenta-
tion, or mistake of the testator, it may be avoided for those causes, as will
be shewn when we come to treat of the proceedings in equity. 3. A will
of personalty, like a devise of realty, may be revoked by cancelling or ob-



Online LibraryHenry St. George TuckerCommentaries on the laws of Virginia, comprising the substance of a course of lectures delivered to the Winchester law school: (Volume 1) → online text (page 103 of 117)