had an immense influence on our jurisprudence, and is substantially adopted in all our States, with slight variations.[23] In that statute certain formalities were insisted upon, but only in regard to a will of real estate; a will of personal property was not required to be executed in the same manner and with the like formalities.[24] Before the Statute of Frauds, according to 32 Henry VIII, it was only necessary for the will to be in writing; and accordingly, where a man beyond the sea wrote a letter, in which he declared his will to be that his land should go in a certain way, it was adjudged a good will.[25] And a will written without the appointment of the testator, if read to him and approved by him, was held good, signing and sealing not being necessary.[26]

Now, by statute I Vict., ch. 26, in England, there are required the same formalities in a will of personal estate as by the Statute of Frauds are required in a will of real estate, and the same is now the case in nearly all our States; and, by the same statute, a person has a full testamentary disposition of all real estate, as well as personal, to which he is entitled, either in law or in equity, at the time of his death.

Our American States generally, after the Revolution, adopted the English common law, as it was at certain periods—some taking one date, and others a different one; but in all substantially the common law was taken as the foundation of our municipal law, with the exception of Louisiana. Hence the law relating to the execution and probate of wills, as administered in the ecclesiastical courts, was engrafted here, subject to certain statutory modifications suitable to our polity and circumstances. But we, having no recognition of an established religion, have given this jurisdiction to special civil courts, denominated Probate Courts in some States, as in California; the Orphan’s Court, as in New Jersey; the Surrogate’s Court, as in New York. The name Surrogate again brings to our mind a reminiscence of the former ecclesiastical jurisdiction; it was the name given to the bishop’s deputy. However, in all, no matter by what name known, the precedents, the decisions, and rules, as established in the ecclesiastical courts in England, in regard to testamentary matters, have authority and force; and it is for this reason the history and adjudication of these courts are so necessary to the lawyer of the present day.[27]

CHAPTER II.

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