Even as to soldiers and sailors great strictness is required. In the first place, soldiers must be on actual military service. The military testament was first conceded by Julius Cæsar to all soldiers, but it was subsequently limited by Justinian to those engaged on an expedition;[39] and our courts in modern times have invariably adhered to the principle that there must be actual warfare.
In this country, the cases upon the subject of nuncupative wills are considerably numerous since the last civil war. In a late case, where the deceased, a soldier, had been duly mustered into the United States service during the late civil war, and while in camp wrote a letter to a friend, directing the disposition of the amount due upon certain securities left in his hands among the brothers and sisters of the deceased, as the holder should think proper, and that all his other property should go to his wife, naming her, she paying his debts, and soon after started on an expedition or raid against Richmond, in which he was made prisoner, and soon after died in prison, the will was held good as a nuncupative one, and entitled to probate.[40]
Sailors must be actually serving on shipboard. Thus, in the case of Lord Hugh Seymour, the commander-in-chief of the naval force at Jamaica, but who had his official residence on shore, it was held that he did not properly come within the exception, for that he was not "at sea" within the meaning of that expression, and that a nuncupative will made by him was not valid.[41] It was held in New York that a person employed as cook on board of a steamship should be classed as a mariner at sea, and therefore entitled to make a nuncupative will.[42]
Section 2.-Written Wills.
The statute law of almost every civilized state at the present time requires a will of real and personal property to be in writing, with the exceptions noticed in the first section of this chapter. A will, wholly written by the testator, signed and dated by him, is called a holographic will, and is, in some States, valid, without the usual formalities required to prove wills.[43]
The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form, or inartificial in expression, discloses the intention of the maker respecting the posthumous destination of his property; and if this appears to be the nature of its contents, the instrument is regarded as a will, if otherwise witnessed according to the mode pointed out in the statute. Professional practice, and long-continued custom, however, have established some technical forms of expression. As if to appropriately mark the solemnity of the act, and to declare a consciousness of it, it was the usual way to commence a will, and it is still observed, with-"In the name of God, Amen"; but this expression is now considered too formal and quaint, and of late the practice is to introduce a will in a less formal manner, thus: "I, John Doe, of --, in the State of --, do hereby make and publish this my last will and testament, hereby revoking all former wills by me at any time made."
It was also customary to refer to the bodily and mental condition of the testator, as, "I, A B, being of infirm health, but of sound mind and disposing memory, and aware of the uncertainty of life, do now make, etc."; but this, to a great extent, is abrogated.
Usually, the first direction given is as to the payment of debts and funeral expenses; but this is merely formal and unnecessary, as the law would have this done in any event; but it may be of use to show that the subject of the testator's debts was brought distinctly to his mind, and may thus aid in the construction of the will.[44] A very general clause in a will, without many exceptions, is one appointing one or more executors. Formerly, it was considered indispensable to the validity of a will that an executor should be named in it;[45] but that opinion no longer obtains either here or in England;[46] and now where the appointment of an executor is omitted in a will, administration is granted to a person with the will annexed.
Many may have an idea that a formal will requires a seal, no doubt from the ordinary phraseology at the close of a will, "Signed, sealed, and published," but there is no State we know of where a seal is now necessary except in New Hampshire.[47] The use of a seal, however, will be required when a testator exercises a power of appointment in a will derived from any prior will or settlement;[48] but if the seal be omitted it will not render the will void; it will only render the execution void as far as the power is concerned. For instance: if, by an instrument under seal, a power is given to a married woman in the nature of an appointment to devise certain real estate, in such a case she will be required to execute the will with a seal, if the appointment is to be a valid one.
The ecclesiastical courts in England and the courts here do not confine the testamentary disposition to a single instrument, but they will consider papers of different nature and forms, if not inconsistent, as constituting altogether the will of the deceased.[49] It is immaterial in what language a will is written, whether in English, or in Latin, French, or any other tongue.[50]
While a will is to be in writing,[51] the law insists upon certain solemnities in its execution to properly evidence the testator's act and intention, without which the will is absolutely void; and courts very strictly construe these requirements, because they are remedial, in order to guard against very grave perils and mischief. The Statute of Frauds required that all devises and bequests of any lands or tenements should be in writing, signed by the testator, or by some other person in his presence, and by his express direction, and subscribed in his presence by three or four credible witnesses. This statute has been the model on which all our statutes, relating to the proof of wills in the different States, were framed. Some have copied it literally, others have adopted it with certain necessary modifications. Questions had arisen under this statute as to what the legislature meant by the word "signed"; namely, whether it should be construed in its strict sense, and by analogy to other instruments, or whether it should be liberally expounded and left open as a question of construction upon intention to be inferred from the facts and circumstances attending each particular case. The construction had been, as well in the courts of England as here, that the writing of the name of the testator in the body of the will, if written by himself, with the intent of giving validity to the will, was a sufficient signing within the statute.[52] Thus the old law stood, and the mischief of it was, that it was not necessary for the testator to have adopted the instrument after it was finished, by actually signing the same at the close of the will, and it did not denote clearly that he had perfected and completed it. To remedy this evil, and to prevent future controversy as to whether a will signed by the testator in any other part of the instrument than at the end, denoted a complete and perfect instrument, statutes have been passed in some States requiring the will to be subscribed by the testator at the end thereof. The statute passed in England in the first year of Victoria, requires that the will "shall be signed at the foot or end thereof by the testator, or by some other person, in his presence and by his direction." Notwithstanding the language of the Statute of Frauds as to signing, without indicating how or where, is still retained in the statutes of the majority of our States, except in Arkansas, California, Connecticut, Kentucky, and New York, where it is to be subscribed at the end, and in Ohio, Pennsylvania, and West Virginia, where it is to be signed at the end of the will.
The requirements of the New York statute are as strict, if not the strictest, of any of our States; and those of California are substantially the same by the recent civil code of that State.[53]
The statute is in its terms perfectly explicit. Four distinct ingredients must enter into and together constitute one entire complete act, essential to the complete execution of the instrument as a will. 1. There must be a signing by the testator at the end of the will; 2. The signing must take place in the presence of each of the witnesses, or be acknowledged to have been made in their presence; 3. The testator at the time of signing and acknowledging the writing shall declare it to be his last will; and 4. There must be two witnesses who shall sign at the end, at the request of the testator.[54]
There must be a concurrence of all these four requisites to give validity to the act, and the omission of either is fatal. Neither of the four, which united make a valid execution of a will, may be done at a different time from the rest. If the instrument has in fact been signed at a previous time, then the signature must be acknowledged to the subscribing witnesses, which is deemed to be equivalent to a new signing of the instrument.[55] They cannot all be done at the same instant of time, for that is impracticable; but at the same interview, one act immediately following the other, without any interval, and without any interruption to the continuous chain of the transaction.[56]
We shall now refer to cases bearing on each of these requisites; and it...
