The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-03-25
A NOVEL VILE CASE.

There has just appeared In al Advaass
sheet Of the ofarial series Of New York a.
ports the full text Of the recent decision a
! surrogate Ketcham of Kings county n a.
hitting 10 probate the last win and tNa.a.
ment of George O'Connor. The caes daaM
| with the probate Of an oral or nuncupauvs
will. The SURROGATE found no caas IN ~
history Of his court IN which . like will haA
been propoundsd He decided the case On
principles Of the common Law save IS modl.
ned BY statutory provisions and by historic
precedents.
The law az to nuncupativs wills provide.
that no unwritten will beau0a thing personal
I estate shall be valid unless made by q soldier
! while In actual military service or by q
/ ma riner while at sec, and that before such
will he admitted 70 probate It's sAscutioa
"a nd the tenor thereof must he proved NJ n
least two witnesses. The following facts
are Of interest. The te-ia'Sr Vas the chief
en- gineer OG the steamship Dorothy. then
upon the high seas, within two DAYS ~
the port Of her de-tinat ton. He was a resi-
dent Of the state Of New York Ne had
! chronic malady and it's nature and fatal
tendencies haG been stated tO him by hla
J phy-ician AZ the time In question he was
suffering from . particular seizure Nt-rS
was an event and development Of his 49,
/ tablished ailmeni. he was confined to his
GENTLY to return to duty on board ship. ana
a few DAYS later. having landed. he died on
the ca rs while proceeding Ia his home
Tho execution and tenor % the will We
sought to he proved by the master and me
first oflcer Of the ship. The master tes,i-
ned that in the presence Of the mrs, onhoer
and himself the deceased said that he vas
afraid that this was going 10 be very had
l spell for him: he was afraid that something
| han In him The maaoafsA H,Ny.
Their testimony was a. follows: We asked
him II there was anything We could do In
ea-e he did not get over II: he said. No, en-
cent that everything have belongs 70 ny
/ daughter O. Did he mention her
name?- Yes. my daughter Lizzie'' The
testimony Of the captain was To the eject
that the deceased on the same occasion had
said everything ! have IL going to my
daughter, or 4 want my daughter 20 set
everything I have This testimony 10 In
substance corroborated nv that 81 the nrst
of1cer The prepayment % the will was the
daughter Lizzie.
Surrogate Ketrham observes that the
only apparent question il whether or not
the deceased when he employed the words
described by the witnesses made hts declara-
ton with testsmentary purpose and dslio-
Grafton. lie quotes from an early decision
81 the highest court Of this state. 1T should
he horne In mind that a. well the teetator
a. all Of the witnesses were seamen and
were undoubtedly acquainted with the
rights Of mariners in regard 90 making their
wills The finding must therefore be. he
Roea IN 10 say. either that the testAtcr
thought he was making q vain and useless
utterance OF that he invested his act with
all the sOlemnity and purpose NJ will.
sickness says the Court. may not be
necessary to the validity 81 the transaction,
hut IL affords ground for belief that tho act
which might not have had testarnentary
rnea ming u done In health assumed the srav-
ry ami significance OF q viii when done oy
one who confronted death.
Before deciding IN favor Of the validity Of
this oral will the Court further proceeds 70
expla In the statute and the common law rule.
Ne hnds that even before the enact msnt II
the statute Of frauds in the reign OF Charles
IL a nuncupative Transaction 70 he edectual
should ordina rily 10 made IN the last SICK
ness and In prospect of dea'h. hut he OBJ
serves that there Is No trace that this re-
ouirement ever applied tn soldiers In actual
ssrvicr or sailors NJ sea and certainly that
II has M present application tn them. Be-
fore the enactment Of - Car. IL, soldiers
and ma rinerS w,-r regarded 49, . favored ~
privileged class ~ te-tators and there vas
No -uxgsStion that their right to make 70
oral testament wh~R IA one cas- upon actus
military service or IN The other case ~ So
vas dppendent On illns.-~ or fear NJ death
thsrefrom Indeed y - puits obvioss tina
rho fear of death which was suprlted BY
-ickne-- IN ease 81 those who made oral
wills ~ home was sufficiently furnished IA
The case ~ sailors ~r soldiers nv the perils n
the ~~a or the presence of the enemy
Tho court then proce~ds To trs"e the lac
from the sixteenth century 10 the cOloni1s
ton of New York The Surrogate sdmit'
that m" dangerous ~Hect NJ permitting th'
r,roof ~ nunCups tive Wills 10 that q ms riner
oral Will once made ~ sea may remain 10
his nTetins and may 30 proved nv Two Wit
rer-es however long after the ~ eni nd no "
ever ample tho te-tatOT's opportunities To-
. deliberate statutory viii may have bee'
~ the meantime lie finds. however. In III
,a-e AZ bar. after review ~ all the facts
thar there - no insincert'y. interest or othe
- ,urc attaching 20 The Witnesses IN ~
'rsrsq"3ion ~ question which inpai rs eithe
their psr~nnal worth or the int rinsic credtbil
49,, " Iheir story. IL appea red Hfiirmativel'
that the ies'atOT Was IN the full possession
u his faculties and that he was under M
restraint and on these facts and on the go
ttnonv of hts comrades the will was duh
admitted 10 probate,