If a testamentary paper be in the hand-writing of the deceased, although unfinished and unexecuted, if prevented by the act of God, it will be admitted to probate. (u) Sed vide 1 Vict. c. 26, s. 9.

An executor on taking probate swears that the writing contains the true last will and testament of the deceased, as far as the deponent knows or believes, and that he will truly perform the same by paying first the testator's debts, and then the legacies therein contained, as far as the goods, chattels, and credits will thereto extend, and the law charge him; and that he will make a true and perfect inventory of all the goods, chattels, and credits, and exhibit the same into the registry of the spiritual court at the time assigned by the court, and render a just account thereof when lawfully required.

When the will is proved, the original is deposited in the registry of the ordinary or metropolitan, and a copy thereof in parchment is made out under his seal, and delivered to the executor, together with a certificate of its having been proved before him; and such copy and certificate are usually styled the probate. (v)

[59] SECT. VI.

Of the probate of nuncupative wills.

A NUNCUPATIVE will is also capable of being proved. (a) But by the statute of frauds, after six months from the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the testimony, or the substance thereof, were committed to writing within six days after the making of such will. And no letters

12.

(u) Scott v. Rhodes, 1 Phill. Rep.

(v) 2 Bl. Com. 508. 4 Burn. Eccl.

L. 215. 11 Vin. Abr. 56, pl. 7.
Bac. Use of the Law, 67.

(a) 2 Bl. Com. 500.

testamentary, or probate of any nuncupative will, shall pass the seal of any court till fourteen days at the least after the decease of the testator be fully expired.

Nor shall any nuncupative will be at any time received to be proved, unless process have first issued to call in the widow, or next of kindred to the deceased, to the end they may contest the same if they please. (b) And (as we may (c) remember) no will in writing concerning any goods or chattels, or personal estates, shall be repealed, nor shall any clause, devise, or bequest therein be altered or changed by any words, or will by word of mouth only; except the same be in the life of the testator committed to writing, and after the writing thereof read to the testator, and allowed by him, and proved to be so done by three witnesses at the least. But nuncupative wills made after the 1st of January 1838, will be void, except those of soldiers or seamen. (cc)

[60] SECT. VII.

Of the probate of the wills of seamen and marines.

In regard to the making and probate of the wills of petty officers and seamen in the king's service, and of non-commissioned officers of marines, and marines serving on board a ship in the king's service, by the statute 55 Geo. 3, c. 60, above referred to, (d) no will made by any petty officer or seaman, non-commissioned officer of marines or marine, before his entry into his majesty's service, shall be valid to pass or bequeath any wages, pay, prize-money, bounty-money, or other allowances of money, to accrue due for or in respect of the service of any such petty officer or seaman, non-commissioned officer of marines or marine, in his majesty's navy; nor shall any will made or to be made by any such petty

(b) Vide supra, 4.
(c) Vide supra, 16.

(cc) Vide 1 Vict. c. 26.
(d) Vide supra, 5.

officer or seaman, non-commissioned officer of marines or marine, who shall be or shall have been in the service of his majesty, his heirs or successors, or at any time since, be good, valid, or sufficient to bequeath any such wages, &c. due or to grow due to any such petty officer, &c. unless such will shall contain the name of the ship to which the person executing the same belonged at the time, or to which he last belonged; and also a full description of the degree of relationship or residence of the person or persons to whom or in whose favour, as executor or executors, the same shall be granted or made; and also the day of the month and year, and the name of the place when and where the same shall have been executed: nor shall any such will be good, valid, or sufficient for the purposes aforesaid, unless the same shall, in the several cases hereinafter specified, be executed and attested in the manner hereinafter mentioned; that is to say, in case any such will shall be made by any such petty officer, &c. at any time or times whilst they shall respectively belong to and be on board of any ship or vessel belonging to his majesty, his heirs or successors, as part of the complement thereof, or be borne on the books of any such ship or vessel as a supernumerary, or as an invalid, or for victuals only, unless such will shall be executed in the presence of and attested by the captain or other officer having the command of such ship or vessel, or (during the absence of such captain or other officer on leave or on separate service) by the commanding officer of such ship or vessel for the time being; and who, in that case, shall state at the foot of such attestation the absence of such captain or other commanding officer from such ship or vessel, at the time of the execution of such will, and the occasion thereof; or in case of the inability of such captain or commanding officer by reason of wounds or sickness, to attest any such will, then, unless such will shall be executed in the presence of and attested by the first lieutenant or other officer next in command of such ship or vessel, who shall state at the foot of such attestation the in

ability of such captain or commanding officer to attest the same in case any such will shall be made by any such petty officer, &c. in any of his majesty's hospitals, or on board of any of his majesty's hospital ships, or in any military or merchant hospital, or at any sick quarters either at home or abroad, unless such will shall be executed in the presence of and attested by the governor, physician, surgeon, assistantsurgeon, agent, or chaplain of any such hospital or sick quarters of his majesty, or by the commanding officer, agent, physician, surgeon, assistant-surgeon, or chaplain, for the time being of any such hospital ship, or by the physician, surgeon, assistant-surgeon, agent, chaplain, or chief officer of such military or merchant hospital, or other sick quarters, or one of them in case any such will shall be made by any such petty officer, &c., on board of any ship or vessel in the transport service, or in any merchant ship or vessel, unless the same shall be executed in the presence of and attested by some commission or warrant officer, or chaplain in his majesty's navy, or some commission officer or chaplain belonging to his majesty's land forces or royal marines, or the governor, physician, surgeon, assistant-surgeon, or agent of any hospital in his majesty's naval or military service, who may happen to be then on board of such transport or merchant vessel, or by the master or first mate of such transport or merchant vessel, or one of them: in case any such will shall be made by any such petty officer, &c. after he shall have been discharged from his majesty's service; unless the same (if the party making such will shall then reside in London or Westminster, or within the bills of mortality) shall be executed in the presence of and attested by the inspector for the time being of seamen's wills, or his assistant or clerk; or unless the same (if the party making such will shall then reside at or within the distance of seven miles from any port or place where the wages of seamen in his majesty's service are paid) shall be executed in the presence of and attested by one of the clerks in the office of the trea

surer of the navy resident at such port or place; or unless the same (if the party making such will shall then reside at any other place in Great Britain or Ireland, or in the islands of Guernsey, Jersey, Alderney, Sark, or Man) shall be executed in the presence of, and attested by one of his majesty's justices of the peace, or by the minister or officiating minister or curate of the parish or place in which such will shall be executed; or unless the same (if the party making such will shall then reside in any other part of his majesty's dominions, or any colony, plantation, settlement, fort, factory, or any other foreign possession or dependency of his majesty, his heirs or successors, or any settlement within the charter of the East India Company) shall be executed in the presence of and attested by some commission or warrant officer or chaplain of his majesty's navy, or commission officer of royal marines, or the commissioner of the navy, or naval storekeeper at one of his majesty's naval yards, or a minister of the church of England or Scotland, or a magistrate or principal officer, residing in any such island, colony, plantation, settlement, fort, factory, or other possession or dependency of his majesty, or settlement within the charter of the East India Company (or if the party making such will shall then reside at any place not within his majesty's dominions, or any settlement, fort, factory, or other foreign possession or dependency of his majesty, his heirs or successors, or any settlement within the charter of the East India Company), unless the same shall be executed in the presence of and attested by the British consul or vice-consul, or some officer having a public appointment or commission, civil, naval, or military under his najesty's government, or by a magistrate or notary public, of or near the place where such will shall be executed.

Every will, which hath been, or which at any time or times hereafter shall be made by any such petty officer, &c. at any time or times whilst they were or shall be respectively prisoners of war in parts beyond the seas, are and shall be good, valid, and sufficient; provided such will shall have