Dockum v. Robinson, 26 N.H. 372

~Wgods, J. By the provisions of cb ap. 156 § 15 of the Rev. Stab, “ Nd nuncupative will shall be valid where the personal estate bequeathed shall exceed in value one hundred dollars, unless it was declared in the presence of three witnesses, who were requested by the testator to bear witness thereto, in his last sickness, and in his usual dwelling, except where he was taken sick from home and died before his return; nor unless a memorandum thereof was reduced to writing within six days, and presented for probate within six months-from the making thereof.” This

section of the Revised Statutes is a substitute for the first and second sections of the act of February 16, 1791, which is a reenactment of the seventh and eighth' sections of the provincial act of 5 George I, and nearly verbatim with the statute of 29 Charles II, chap. 3, comm only-called the statute of frauds.

Our statute of 1791 provides, first, “ That no nuncupative will shall be good where the estate thereby bequeathed shall exceed 'the value of thirty pounds, which is not proved by the oaths of three or more witnesses, who were present at the making thereof, nor unless it be proved that the testator at the time of pronouncing the same, bid the persons present, or some of them, bear witness that such was his will, or to that effect; nor unless-such nuncupative will be made at the time of the last sickness of the deceased, and in the house of his or their habitation or dwelling, or where such person hath been resident for the space of ten days or more, next 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 his dwelling.” And it provides further, “ that after six months passed from the speaking the pretended testamentary words, no testimony shall be received to prove any nuncupative will, except said testimony, or the substance thereof, be committed to writing within six days after making said will.” These statutes contain the exceptions in favor of testamentary dispositions of personal property made by mariners at sea, and soldiers in actual military service, supplied by our statute of 1848 chap. 726.

The peculiar circumstances in which this kind of will is necessarily made, have been the cause that two opposing general views have been taken of it.

From natural tenderness towards the last wishes of the dead, and a prevailing inclination to give the utmost breadth and effect to the function of -the ■ owner of property, by extending his control over it beyond the term of his life, and his capacity to enjoy it, and according to him something like a second benefit of it, in the persons of the objects of his affections, an argument has been drawn for admitting words to be proved as wills, without a very rigid application of the legal tests.

While on the other hand it has been urged, that the liability of witnesses to err in respect to words spoken in sickness and pain, and under the influence of grave apprehension, the danger that the party in such conditions may himself overlook important objects, and omit material qualifications, having no opportunity, as in a written will, to revise his work, and the great facility with which such wills may be produced, by the fraud of unscrupulous attendants, by.strangers among whom the casualties of sea or of land or sudden pestilence may have thrown the dying traveller, make it the duty of courts in the construction of statutes, to lean strongly against such forms of testament.

Black. Com. 500; Prince v. Hazelton, 20 Johns. Rep. 502. In the decision of this case, it may be sufficient however to premise, that both written and oral wills derive their force and validity from positive law. Both are sanctioned by express statute, and when executed in the manner which the statute points out, without surprise, by parties legally competent, are of. equal consideration.

And where a party dies, omitting for any cause to make a will in either of the forms recognized by law, no evidence as to what his wishes and intentions might have been, can be heard in court; but the silence of intestacy must prevail. The question to be decided is, did the deceased, John Towle, make the supposed nuncupative will in the form and manner prescribed by law?

The civil law, in which the term originated, in addition to a large class of privileged or unsolemn wills, as for example, that of the mariner at sea, the soldier in service, the victim of sudden contagion, and the rustic, ignorant of letters and of legal forms, recognized two modes of solemn testament, between which the Roman citizen had his option, as of equal force and consideration, and, except of course in the particulars of signing and sealing, requiring the same somewhat arduous formalities for their effectual execution. These were the written and the nuncupative wills. 1 Browne’s Civ. Law ch. 10.

The ecclesiastical courts, which had, from .an early period after the conquest, jurisdiction of intestacy and wills of personal property in England, admitted both these kinds of will to probate, and applied to them the same general canons of evidence ; in these, as in most other particulars, deriving the outlines of their jurisprudence from the civil law. 1 Reeve’s Hist. Eng. Law 72 ; 1 Browne’s Civ.

L. 338-9; Lex Testamentaria 576.' Before the statute of frauds, the nuncupative will was required to be reduced to writing, and proved before the ordinary, before it could serve as the foundation of any action or defence. Lex Testamentaria 433, where are cited the Yearbooks 10 Ed. IV. 1; 5 Hen; V. 1; 4 Hen. VI. 1; 14 Hen. VI. 5 ; Fitz Executor 2; and Verhorn v. Brewin, 1 Ch. Rep. 192. And it seems probable, from the cases and authorities cited in Prince v. Hazelton, 20 Johns.

Rep. 502, that its use had long before the statute of frauds, been, in practice at least, limited to cases of sudden and final sickness and apprehension of immediate death. "Whether we consider the nuncupative will, as used by the Roman to endow and dignify his personal successor, or as in later times in England, an expedient of hurry and alarm at the last hour, to direct the distribution of chattels, it must be regarded as having possessed at all times the essential qualities of a testamentary act.

Like a written will or testament, it always has been and must be considered as a deliberate act, by which a party legally directs the distribution to be made of his property after his decease. The whole purview of the several statutes on this subject, as well as numerous phrases and expressions contained in them, plainly shew that they were intended to apply to

an act designed by the party to be final and testamentary. They require the “ will ” to be “ declared in the presence of three witnesses,” requested by the testator “ to bear witness thereto.” The old statutes required three' witnesses to be “present at the making ” of the will; tfiat the testator at the time of pronouncing “ the .will ” “ shall bid the persons present bear witness that such is his will,” and that “ after six months from the speaking the pretended testamentary words, no testimony shall be received,” &c.

Now an intention or a desire to make a will at some future time, however clearly expressed, however established in evidence, however earnestly cherished, and by whatsoever casualty defeated, is in no sense a will. Undoubtedly decisions are to be found seeming to be in some measure to the contrary of this. For example, in the construction of the statute of wills, (32 Hen.

VIII,) authorizing the disposition of .real estate by testaments made in writing by the party or by his direction, it had been held before the statute of frauds that memoranda dictated by the deceased to the physician for drawing up a will, though never read over to the deceased, and although the intended will was never reduced to writing, were a valid testament within the statute. So notes delivered to counsel, with instructions to draw a will, were holden to be a will under the same statute. Comyn’s Dig. Devise D. 1.

But the papers set up and allowed as wills in those cases, were plainly not intended as such by the parties dictating or writing them, and the decisions themselves may well be regarded as giving good occasion for the passage of the celebrated statute already mentioned, one of whose leading purposes it was to fix a clear boundary between the conditions of testacy and intestacy. It is a perversion of language and a confusion of thought, to pretend, that directions to another to draw up a will in form for publication, is itself a published will.

The party himself cannot be supposed to think that he is thereby performing a final act. In the very expression of his purposes, and giving his commands, is involved the condition that the proposed disposition of his property shall not take effect, but in the particular form and manner that he has indicated.

This plain distinction between a will and the declaration of a purpose, or the giving of directions to' make one, has justly been applied to cases, in which such purposes or directions, having failed by reason of sudden déath or loss of faculties to be carried into effect, have afterwards been attempted to be set up as nuncupative wills. In the case of Winn v.

Bob & a., 3 Leigh 140, the probate of the supposed testamentary words was denied upon the ground that it did not appear that the deceased, at the time of pronouncing them, had a present purpose of making a last will. “ There was no expression or act of the sick man to show that he thought himself making a will; or whether he intended it to be by parol or in writing.” In the abstract of that case, it is stated that the deceased ought to “ have a present intention to make a will and to speak the words with such intention, and should clearly indicate such intention by calling upon persons present to take notice or bear testimony that such is his will, or by saying or doing something tantamount, in substance, indicating plainly that the words spoken are designed as testamentary.” In the case before us, the deceased, Towle, being of the age of about fifty years, and possessed of some sixteen hundred dollars in cash and securities, was, while sick at the house of Sarah Fogg, advised of the fatal type of his malady, and expressed a desire of disposing of his property.

As to the means of doing that, he does not appear to have had any doubt. He sent for Dr. Odell to come and “ make his will.” He informed Dr. Lord that he had sent for Odell for that purpose, and desired him to come also. At the appointed time, in the presence of these gentlemen, who had met him for the express purpose of making his will, after some suggestions from Dr. Lord, which induced him to change somewhat his first plan of distributing his property, he expressed his wishes substantially in the words set up as the will.

It is distinctly found that these words were spoken by him in the way of directions to one or both those gentlemen, as to what the will, which they had come to write, should contain. No one who heard the words, suspected that they were uttered with a different intent, and it is evident from the sequel, that the deceased did so intend them.

The two physicians retired to write the will; one of them soon returned to suggest alterations, which were accordingly adopted by the deceased, and then read over to him the memorandum, which had been made of the directions, and ascertained, by inquiring of the deceased, that they were correctly noted. He then retired again to write the will. In every stage of this business are manifold proofs of the adhesion of the sick man to his first and only purpose, of making a written will; and there is no evidence whatever that he entertained for a moment, the thought of making an oral will.

A sudden crisis of his sickness, and ensuing death, defeated his purposes. If we could question for a moment the soundness and the application of the principles which seem to preclude us from admitting to probate as a nuncupative will, the words which have been propounded as such, the circumstances of this case would go far to remove such doubts, and point out the extreme hazard and difficulty of proceeding upon the grounds assumed by the appellants.

While the decedent appears to have been firm in his purpose of making a written will, a good degree of vacillation was shown as to what its precise provisions should be. His first plan was to bequeath the notes specifically, and to make Neal his executor. In both these particulars he submits with a singular facility to the suggestions of his friends, who at the moment of his death, had presumed so far upon his ductility in this regard, that without any consultation with him, they had begun to draw up a will still different from either of the first two which had been proposed.

Upon such evidence we may well doubt whether some further'influences might not at the moment of signing and sealing, have intervened to demolish all the prior schemes, and set up something still new and different for a will. Wholly unlike this case in every important particular was that of Parsons v. Parsons, cited from the Maine Reports. There were unquestionable indications, first, that the testator did not intend to make a written will, and secondly, that he did intend his words to be taken and observed as and for final directions concerning the disposal of his’ property after his death.

On being asked who he intended should have his property after his decease, .he replied, “ his wife.” His father, who was the heir, being present, assented in express terms, as one who had an interest.

This opens the way to understand the testamentary words, which he afterwards pronounced in reply to a similar question — “ all to my wife, that is agreed upon.” He then by a gesture invoked the attention of the father, who again assented, and the testator made the whole business once more sure, by saying to his wife, “ you see my father acknowledges it.” It is plain that the testator intended, by those words, to dispose of his property, and by his gesture to bid his father bear witness to his will; and from all the circumstances it is evident that he fully believed he had accomplished his purpose.

If an intention to make a will had not been wanting in the case before us, there was not such a request to three witnesses present to bear witness to the supposed will, as the statute requires. . Whatever language, having anything like that purport, was used by the deceased, was addressed to the two physicians. No other person was directly or otherwise requested to bear witness, and the act must fail, if upon this ground alone. We are therefore bound to conclude that the decedent, John Towle, never intended or attempted to make a nuncupative will.

That if there was such art intention on his part, it failed for noncompliance with the requirements of the statute, and that the decree of the probate court must be affirmed. Decree affirmed.