Instruments. it was intended to convey a benefit upon and after death, it Testamentary may, notwithstanding the apparent form, operate as a will; or if it is equivocal or silent, it may be proved by extrinsic circumstances, to have been intended to operate as a testamentary disposition. Most of the cases upon the subject are to be found referred to in Thorold v. Thorold (m), and in the subsequent case of Masterman v. Maberly (n). One or two additional cases have been referred to in the course of the discussion; but they do not appear to me either to carry further, or to alter, the principle which is laid down in those cases,- that the form of the instrument is not conclusive against its testamentary effect; that although it may not be valid in the form in which it was drawn up as a deed of gift, yet that it may operate as a will. But no case has gone the length of deciding, that because an instrument cannot operate in the form given to it, it must operate as a will;-it may operate as a will if shown to have been written with a testamentary intention. ["If there is any proof, either in the paper itself, or from clear evidence dehors; first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it, if considered as a will; and secondly, that death was the event that was to give effect to it, then, whatever be its form, it may be admitted to probate as testamentary." [There seems to be this distinction between papers which are in their terms dispositive, and those which are of an equivocal character,-the latter must be proved to be testamentary by the party claiming them, the former are entitled to probate unless they are proved not to have been written animo testandi (o). [Several instruments of different kinds and forms may be taken together to constitute a will (p). Lord Hardwicke said. the ecclesiastical courts would give probate of almost any paper writing (q) a deed-poll or an indenture (r), a deed of gift (s), a bond (t), marriage settlements (u), letters (x), drafts on bankers (y). (m) [1 Phill. 1.] (n) [Vol. ii. 225.] (o)[See case last cited, and Griffin v. Ferard, 1 Curt. 100.] (p) [Sandford v. Vaughan, 1 Phill. 39, 128; Harding v. Bagshaw, 2 Phill. 48; Masterman v. Maberly, 2 Hagg. 135.] (9) [Ross v. Ewer, 2 Atk. 163.] (r) [Shingler v. Pemberton, 4 Hagg. 356.] (s) [Thorold v. Thorold, 1 Phill. 1, and the cases therein cited.] (t) [Masterman v. Maberly, 2 Hagg. 235.] (u) [Passmore v. Passmore, 1 Phil. 218; In the goods of Knight, 2 Hagg. 554.] (x) [Repington v. Holland, 2 Lee, 106; Passmore v. Passmore, 1 Phill. 218; Deny v. Barton, 2 Phill. 575; Manly v. Lakin, 1 Hagg. 130; In the goods of Dunn, 1 Hagg. 488; Masterman v. Maberly, 2 Hagg. 347.] (y) [Bartholomew v. Henley, 3 Phill. 317; Gladstone v. Tempest, 2 Curteis, 650. See also receipts for stock endorsed, &c.; see cases cited in Masterman v. Maberly, 2 Hagg. 247.] When parol Evidence is admissible. Declarations of Trust. Nuncupative Will. [In cases where the character of the instrument upon the face of it is equivocal, the case is opened to the admission of parol evidence of the testator's intention as to whether he considered it in the light of memoranda for a future will, or as his final disposition. In a court of probate the intention of the deceased is to be collected from all the circumstances of the will, and therefore an ambiguity on the fcctum of the instrument may be explained by extrinsic evidence (2). But it is a rule that in order to justify its admission, it must be proved1. That the ambiguity must be upon the face of the paper; 2. That the facts alleged and to be proved must completely remove that ambiguity (a). [The cases cited in the last note seem to establish the proposition, that casual omissions in wills may be supplied, or sometimes insertions considered as not therein, and the wills so amended admitted to probate in two cases: when on the face of the will there is some absurdity or ambiguity which is palpably the consequence of the omission; and when there is clear proof that the insertion or omission was contrary to the intention of the testator (b). It must be remembered that omissions in the will can only be supplied by instructions reduced into writing during the lifetime of the testator. No mistake could otherwise be amended without a violation of the statute of frauds (c). [The new Will Act (1 Vict. c. 26), takes away all such power from the court with respect to wills made since 1st Jan. 1838. -ED.] By the same statute of the 29 Car. 2, c. 3, s. 7, "All declarations or creations of trusts or confidences, of any lands, tenements, or hereditaments, shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will in writing; or else they shall be utterly void, and of none effect." Sect. 9. "And all grants and assignments of any trust or confidence, shall likewise be in writing, signed by the party granting or assigning the same by such last will or devise; or else shall be utterly void and of none effect." A nuncupative testament is, when the testator without any writing doth declare his will, before a sufficient number of witnesses (d). (z) [Greenough v. Martin, 2 Add. (a) [Fawcett v. Jones, 3 Phill. 434; Hagg. 74; Barwick v. Mullings, 2 (b) [Bayldon v. Bayldon, 3 Add. 232; Travers v. Miller, 3 Add. 226; and see Sir H. Jenner's remarks in Castell v. Tagg, 1 Curt. 298.] (c) [Rockell v. Youde, 3 Phill.141.] (d) Swin. 58. By the aforesaid statute, 29 Car. 2, c. 3, s. 19, "No nuncu- Nuncupative pative (e) will shall be good, where the estate thereby bequeathed Will. shall exceed the value of thirty pounds, that is not proved by the oaths of three witnesses at the least, that were present at the making thereof; nor unless it be proved, that the testator at the time of pronouncing the same did bid the persons present or some of them bear witness that such was his will, or to that effect; nor unless such nuncupative will were made in the time of the last sickness of the deceased, and in the house of his habitation or dwelling, or where he hath been resident for the space of ten days or more before the making of such will, except where such person was surprised or taken sick, being from his own home, and died before he returned to the place of his dwelling." Sect. 20. "And after six months passed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony, or the substance thereof, were committed to writing within six days after the making of the said will." Sect. 21. "And no letters testamentary or probate of any nuncupative will shall pass the seal of any court till fourteen days at the least after the decease of the testator be fully expired; nor shall any nuncupative will be at any time received. to be proved unless process have first issued to call in the widow or next of kindred to the deceased, to the end they may contest the same if they please." Sect. 23. "Provided that notwithstanding this act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his moveables, wages, and personal estate, as he might have done before the making of this act." And by the 4 Anne, c. 16, "All such witnesses as are and ought to be allowed to be good witnesses upon trials at law, by the laws and customs of this realm, shall be deemed good witnesses to prove any nuncupative will, or any thing relating thereunto (f)." By the Oaths of three Witnesses at the least.]-T., 1704, Philips v. The Parish of St. Clement Danes (g). Dr. Shallmer by will in writing gave 200l. to the parish of St. Clement Danes; and after Prew the reader coming to pray with him, his wife put him in mind to give 2001. more towards the charges of building their church; at which, though Dr. Shallmer was at first disturbed, yet afterwards he said he would give it, and bid Prew take notice of it; and the next day bid Prew remember what he had said to him the day before, and dies that day. Within three or four days after the doctor's widow put down a (e) [See 2 Black. Comm. 501.] Lee, 343; Bennet v. Jackson, 1 Phill. 190.] [See Freeman v. Freeman, 1 (g) 1 Abr. Cas. Eq. 404. Will. Nuncupative memorandum in writing of the said last devise, and so did her maid. Prew died about a month after; and amongst his papers was found a memorandum of his own writing, dated three weeks after the doctor's death, of what the doctor said to him about the 2004., and purporting that he had put it in writing the same day it was spoken; but that writing, which was mentioned to be made the same day it was spoken, did not appear: and these memorandums did not expressly agree. About a year after, on application of the parish to the commissioners of charitable uses, and producing these memorandums and proofs by Mrs. Shallmer and her maid, they decreed the 2001. But on exception taken by the executors, the decree was discharged of this 2007.; and the lord chancellor held it not good, because it was not proved by the oath of three witnesses: for though Mrs. Shallmer and her maid had made proof, yet Prew was dead, and the statute in that branch requires not only three to be present, but that the proof shall be by the oath of three wit Rogatio Testium. nesses. [The (1 Vict. c. 26) new Will Act renders all nuncupative wills invalid; but the 11th section provides, "that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of this act." [And it has been held that the term "mariner or seaman" includes every person in her majesty's navy, even superior officers being at sea (h); and that sect. 23 of the statute of frauds applies to merchant seamen (i). Vide post, "Seaman's Wills." [The rogatio testium, that is, that the testator shall bid some of the persons present bear witness that such is his will, is an indispensable requisite for the validity of a nuncupative testament. The deceased must have called upon some of the persons present to bear witness to the act, not merely have declared, that he wishes such a disposition to be made of his effects (k). Nuncupative wills are not favoured by the ecclesiastical courts, who require a strict compliance with all the provisions of the statute of frauds before they admit such a will to probate-the factum of such a testament must be proved by evidence more stringent in every particular than that of a written one (?). Swinburne says that a nuncupative will may be made not only by the proper motion of the testator, but also at the interrogation of another (m). [In re Moresby, where the testator made a written will in England, and afterwards a nuncupative one in Peru, not in conformity with the statute of frauds, it was said to be doubtful (h) [In the goods of Hayes, 2 Curteis, 338.] (i) [Morell v. Morell, 1 Hagg. 51.] (k) [Richards v. Richards, 2 Lee, 588; Bennett v. Jackson, 2 Phill. 190, and the cases there cited by Sir John Nicholl.] (1) [Lemann v. Bonsall, 1 Add. 389.1 (m) [Pt. 1, s. 12, pl. 6.] whether such a will was governed by the 22d section, but the point was not decided (n). Sir George Lee said, in Serocold v. Hunter and Hemming, that it had been often held at the council board that the statute of frauds did not apply to the plantations (o). It has been held that the 22d section does not prevent a nuncupative disposition (made according to the restrictions of the statute) of a lapsed legacy (p); and that where part of personal estate had been disposed of by a written will, the residue might be left, if the executor was not altered, by a nuncupative will (q); and that where part of a written will had been obtained by force or fraud, the thing bequeathed by that part might be nuncupatively disposed of (r).-ED.] Letters Testamentary or Probate of any Nuncupative Will.]-H., 22 & 23 Car. 2, Verhorn v. Brewin (s). Ẩn administrator brought a bill to discover and have an account of the intestate's estate: the defendant pleaded, that the supposed intestate made a nuncupative will, and another person executor, to whom he was accountable, and not to the plaintiff as administrator. But decreed, that though there was such a nuncupative will, yet it was not pleadable against an administrator before it was proved. [A disposition not valid, as nuncupative will, may sometimes be supported as a trust (1). Nuncupative wills have been subjected to peculiar regulations by the following statutes: 26 Geo. 3, c. 63; 32 Geo. 3, c. 34, s. 1; 11 Geo. 4, c. 20, s. 48 -50; 2 & 3 Will. 4, c. 40, ss. 14, 15.-ED.] Swinburne says (u), that a codicil, by intendment of law, is Codicil. either to alter, explain, add or subtract something from the will; and wherever it is added to a testament, and the testator declares that it shall be in force, in such case, if the will happens to be void for want of those solemnities required by law, yet it shall be good as a codicil, and be observed by the administrator: it is true, executors cannot regularly be appointed in a codicil, but yet they may be substituted according to the will of the testator, and the codicil is still good. [And so Godolphin seems to consider a codicil as an unsolemn last will (x). Its derivation is clearly from codicillus, the diminutive of codex.-ED.] M., 31 Car. 2, Stoniwell's case (y). The testator made his wife executrix and residuary legatee; but she dying in his lifetime, he by a codicil nuncupative devised to G. R. all which by will he had given to his wife, and died. The question was, whether this nuncupative codicil was good, notwithstanding (n) [1 Hagg. 380.] (0) [2 Lee, 494.] (P) Robinson's case, Raym. 334.] (9) [Ibid.] (r) [Ibid.] i Chan. Cas. 192. (t) [Nab v. Nab, 10 Mod. 404; (u) [Part i. s. 5, pl. 2.] |