The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-11-09

SvNoUfArrvB wYLLs-rHB MANNER OF MAKING
WILLS IN THE EARLY AGES, AND TIE CHANGES
sNCR-wr.Ls OF SOLDIERS AND SAILORS.
Before A. W. Bradford, Surrogate.
Nov. III, the Hater of Pro-f,g ne Last wa and
1samm. Of George Thompson, de;sasos-Tne deceased
Who was cook ON beard the steamship Hermann, dc
parted this s at the Cd Of February last, while
% Tie way rom Bremen to Southampton Two days be-
tre when the vessel lying at the wharf at Brsmen
he told Frederick Pearson that he wished the money be-
hngipg TO him ON deposit In the Seamens Savings Bank
n the city Of New York, to be sent 70 bis mother, re
siding at Glasgow in Scotland. This declaration IVES
made in the last Sickness when the decedens expected 10
aie, and with the intention OF making poshumous dis
position OF his property 70 this good nuncupatve wq
nuncu oatlve will, terme1-0 nOncupGn do-thai
b, nom naming an executor by word Of mouths
. verbal documentary declaration or disposition.
S7o By the common sw Il was 4. vi valid IN re-
gpect to personal estate as written testament. vii
could no. only be made BY word Of mouth but the mos
solemn instrument in writing might be revoked orally
In q rude and uncutvaed age to have luired writ
ten viii would have been great hardship, but with the
verbal Testament diminished In force, until fualy
effort 10 establish such will by of gross fraud and
ses passed 1870 tsrmsd The statute Of Frauds
gO0Ie against Mordaunt Vesey, 19e.) Originally, nun
cup&tve wills ere valid, though not made 10 sickness
sxons were regarded with disisvor, ,and ultimately
were considered invalid unless made in the lss
snss as Fs made xSsr ns s
hang a'shiDg for fear Of sudden death and daring
not TO stay the wiring Of b., tes.amsnt (Pe..,
70 be usually made when the tests'or very scs,
weak and past all hope Of recovery. SO 1t eventually
became aeted doctrines that municipalities to be
tolerated only when made in the last sckness and
provision to that effect Incorporated in the satrte OF
TEa. in respect 10 dis p0sGDs Of estate s5
% J. co., 7. Bscon's Ab. 305, O. Wood Com. b7i 2.
b. Com 500, i. s~s System 42o) Is not necessary
op1u "a tAnpf ogkoe
they did not apply to the testaments OF soldiers aud
YDes and by the Revised statutes Of New York,
we'll by the statute OF Wet ch 49, all municipalities
invalid except those made by soldiers and seamen.
The reVisers OF statutes repealed restrictions
slon nuncupa.iye wills, bu; the legislature serogs
and the same co lrse was followed in the English
statute, q ? :. Eensens Notes, p eso) The only nuo
supative wills allowed are those made by soldiers
and Sailors II appears from the preface the Life of
SIR Leoline Jenkns" that he claimed the merit q. the
tine Of the preparation Of tie Statute Of Frauds Of having
benefit Of the testamentary privileges Of the Roman army
he Roman soldier was INDUCED with very peculiar rights
and mnunitles In the way of exemption from the usual
rules In respect TO wrs-ier crnc sltsn eoss In the
camp and the battle aed the testameutary law
sAe forms prescribed by law FOR the execution OF viii
dispensed wh 30 that the soldier might 6esiSre his
@ % a.
The disposition was held firm and sacred. This priv
lese was unknown IN the republic; but when
m one person, and the army became the con
trolling power Of the Sate, under julius Cesar,
That celebrated commander authorized tee making
military testament in any mode and without prescribed
ocrsmonias. The example thus set was sub sequenty
followed by Titus, Domitian, Nerya and Traan, until
~ tI) was extended also TO the naval service, and
officers sailors IN this respect esteemed
h0 a Of rs WAS 'ts
nuDcupetve wills, which were alo Ted wherever the
civil Law prevailed, and have been rally adopt
ed among civilized nations (Domst pit =, In. i'll tit :,
J. 3. John Noet Com. Pand lb 70, tn. i. Daraut0n
tonne. O. lib. g. it, 2. Touer, tome s. No. 3, VI. In
France the ordinance De u KGriH> OF 1851, ft gave
special privileges wills made at and the ordinance
Of 1855 Yegulsed the celebration OF the mi1sry tesla
mont The Code Civil has also adopted definite rules in
regard 10 wills made In time Of pestlerce, or BY
soldiers in service. art ssl-s) In Holland, when
commerce began TO be extended to distant voyages,
The question arose whether wills made 81 sea were on
skled peculiar immunity, and rome jursu affirmed
that they should be takea - military testaments The
in case Of persons sailing 70 or returning from the Indies
By the ordinances of the West India Company in 1872
and 1875. Cvoet, Com Pand. lib. 20, tit. - In Eng
hnd by statute OF frauds, passed about the same
time the full benefit OF the privilege was given, whou
restriction oil soldiers and sailors In sctual service
and have already stated this liberal will has cont
nued to the present day Nuncupative wills, beng
regulated by statute to their mode of celebrationo
execution the angle question for The Judgment Oh tn
entitled 70 that privilege The restrictions or the ssauts
Of frauds not applied TO wills made BY sny soldier
SeiDs a. sea" By the Revised statuies OF New YORK
4 provided that nuncupatvc Wills should not b
v9nd. unless MADE Oy q Eouior Wuio IN bctuAl mln
sary service or by mariner while At sea-" (2Rs.,p
90, k22). the terms OF tue exception In toe statut
Wet c. TO- are, ANY soldier being 10 actual military
service, or any mariner or seaman beng ct sea-" tn,
pAraseology slightly different In those statutes but
The rule os,antaly the in sllthat the nun
cupaton 10 oply valid whom made oy soldier In &C
tual military service mariner ct sea- ., the time Of
the tesla nentary act. II s not enough 70 be SOL
disr or sailor but there must Dc sc,us service Inc
to all soldiers, but II was subsequently, limited by
Jasiinisn engaged in expsd,iou-sl qui IN
g. ss., H. e'T Il III; 4S sd EXCEPTION S Va: Oel
roved with the rule from the civil Law, aud the
SS. have .sns,si 70 The pssp :. s.
gagged IN esFeditioH che goods Of johnson 2 Cur
sss 34l. In re-, Phpps, IBID $685. In re-, Churchill
White n AFT. Rerton, carieis. 5 is. Drummosd sst
PSron hid 6s2 The goods Of Perry q Notes Of Gases
so.ds s 81 af ssss Com ss
Cujac Consult, 4e) So also tho nuncupst!os OF ma
rser 70 be valid must be made II SEA- (key ast Jordan
In CuYteis, 522) Ia sometimes difficult 70 determuo
whom the mariner s to DO considered At sea. For OK.
ample. Lord Hugh seymour, the Admiral or the station
AT the house ON shore appropr ated 70 Admiral Of the
station. The codc rejected on the ground tina; he
snly visited his ship occasionally while MS sIlly essse
residence bc Earl Of Easton sg lord Henry Seymour
curscis se) But when a mariner belonging 70
an accident when on shore by leave, made .
nascupauve WILL and died there, probate was granted
you, 81. ship fin the goods OF LAY, Cur,es, sss)
rhewi OF shpmaster made OF otaheise has ais, been
slsowed (In Thompson 9, Notes Of CAsce. 6o6) In
ne present instance. the deoedent made nuncupaton
vhan the vessel 10 which be attached lying At
her wharf In Bremen. He AZ the time in actual
vice shpboard and the OF tie service
tnuous not being limited 70 the particular voyage.
tkt therefore, he entitled 10 the privilege. Aques
ton arscs however 10 the character Of his cslhng
he cook board some steamship, and not what 10
ORDINARILY Understood mariner. The principle upon
which the privilege OF pououpston In conceded, applies
Ill persons engaged IN the marine service, whatever
may be their special duty occupation the vessel
A. 70 the army the term "soidicr" en- braces every
Grade from the private 10 the highest of1cer, and
incodcs tue gunner the surreon or the general I'm
the Foods OF iona dson, Curtes $50. Sbcarmsn
sq Pyle, in . Curtcis, 52l In 70. Prcndererast, 9,
Noscs Of Cases, %. Merlin, Test scot. IA. 3, arts
", vtl.) 20 in the marine. the term mariner
applies every person in the naval or mercantile ser
vice fsu the common seaman 70 the captain or admiral
II 10 NOT Nuted restricted n any special occupation
shpboard hut purser, any other person whose par
senar vocation does relate 70 the sailing Of the
sell possesses the right ~ the sailor fNorrei
against Newell, Esgg. 81. In the goods OF Richard
Hayes 2 Ourteis. 33s A cook IA certainly az much
necessary part Of the elective service Of vessel a. the
purser or GATOR and would 70 be reason
"A eadx nla NJ 4