Strictness as to the factum of a nuncupative Will independent of the statute. A nuncupative made by inter- S. 22, of the statute does not apply to lapsed legacies: disposition of her effects, and the conduct of her family after her death, such declaration was held inadmissible to probate, as a nuncupative Will, on account of the want of rogatio testium; for the words of the statute are very strong, and must be held strictly, that the deceased shall call upon the persons present to bear witness to the act; he must declare that the words were spoken with the intention of making a Will at the time (z). So little are nuncupative Wills favourites with the Ecclesiastical Courts, that not only must all the provisions of the Statute of Frauds be strictly complied with to enable such a Will to probate; but added to this, and independent of that statute altogether, the factum of a nuncupative Will requires to be proved by evidence more strict and stringent than that of a written one, in every single particular (a). This is requisite in consideration of the facilities with which frauds in setting up nuncupative Wills are obviously attended; facilities which absolutely require to be counteracted by Courts insisting on the strictest proofs as to the “facta” of such alleged Wills. Hence the testamentary capacity of the deceased, and the animus testandi at the time of the alleged nuncupation, must appear, in the case of a nuncupative Will, by the clearest and most indisputable testimony (b). It is laid down in a book of authority (c), that a nuncupative testament may be made, not only by the proper motion of the testator, but also at the interrogation of another. It has already appeared that by the twenty-second section of the Statute of Frauds it is provided, that no written Will shall be repealed or altered by any words or Will by words of mouth only.-It has, however, been held, that this section does not prevent a nuncupative provision, (made according to the restrictions of the statute) of a lapsed legacy. Thus, Richards v. Richards, 2 Cas. temp. Lee, 588. (z) Bennett v. Jackson, 2 Phillim. 190. See also Parsons v. Miller, and Darnbrooke v. Silverside, cited by Sir John Nicholl, in his judgment, 2 Phillim. 192; and (a) Lemann v. Bonsall, 1 Add. 389. (b) 1 Add. 389. 390. (c) Swinb. Pt. 1, s. 12, pl. 6. where one made his Will, and his wife executrix, and gave her all the residuum of his estate after certain legacies paid; she died in the testator's lifetime, and he, having notice of her death, made a nuncupative codicil, and gave to another all that he had given to his wife; and the single question was, whether the nuncupative codicil was allowable notwithstanding this clause of the Statute of Frauds. And it was held at the Delegates that, as this case was, the nuncupative Will was good; for, by the death of the wife before the testator, the devise of the residuum became totally void; and so there was no Will as to that part; and therefore the nuncupative codicil was quasi a new Will for so much, and was no alteration of the Will as to that; because there was no such Will, its operation being determined (d). legacy: And it was held in the last case, that if any part of a Will or a void in writing was made by force or fraud, the thing so given and specified in such part might be devised by a nuncupative codicil; for such part as was so obtained, was no part of the Will; and therefore such codicil would be no alteration of what was not, but would be an original Will for so much (e). And it was also held in the last case, that if A. be possessed of an estate of 1000l., and by Will in writing gives 500l. of it to B., he may give the residue by a nuncupative Will, so as he does not alter the executor (f). It seems that a disposition not valid as a nuncupative Will, by reason of non-compliance with the forms and circumstances required by the Statute of Frauds, may in some cases be supported, as a trust in Equity. Thus where a daughter deposited 1801. in the hands of her mother, and then made her Will, and gave several legacies, and made her mother executrix, but took no manner of notice of the 180l.; but afterwards by word of mouth desired her mother, if she thought fit, to give the 180l. to her niece; and on a bill filed by the niece for this sum, it was proved in the cause for the plaintiff, that the daughter after making the Will had or property Will. A disposition nuncupative Will, may sometimes be not valid as a supported as a trust. Whether the applies to a nuncupative Will made abroad. said she had left her niece 180l. as a legacy, but the parol declaration of the daughter appeared only by the answer of the mother upon oath; it was agreed that this was not good as a nuncupative Will, being above 301. and not reduced into writing within six days after the speaking, as the Statute of Frauds requires; but the mother was decreed to be a trustee for the niece (g). In a late case, where the testator made a written Will in statute, s. 22, England, and afterwards a nuncupative Will in Peru, not in conformity with the Statute of Frauds, with a general revocatory clause, and probate thereof was obtained in Peru; Sir John Nicholl said there might be some doubt whether the twenty-second section of the statute applied to such a nuncupative Will: but the other circumstances of the case made it unnecessary to decide that point (h). (g) Nab v. Nab, 10 Mod. 404. 1 Eq. Ca. Abr. 404, pl. 3. Gilb. Rep. Eq. 146. (h) In re Moresby, 1 Hagg. 380. The Statute of Frauds has often been held at the Council Board not to apply to the Plantations : By Sir G. Lee, in Serocold v. Hemming, 2 Cas. temp. Lee, 495. See post, Pt. 1. Bk. IV. Ch. III. § VI. CHAPTER THE THIRD. OF THE REVOCATION OF WILLS OF PERSONALTY. THERE has already been occasion to observe that a Will is in all cases whatever a revocable instrument. For though a man make his Testament and last Will irrevocable in the strongest and most express terms, yet he may revoke it; because his own act and deed cannot alter the judgment of law to make that irrevocable which is of its own nature revocable (a). A Will is, therefore, said to be ambulatory until the death of the testator (b). It has already been stated that a mutual and conjoint Will is unknown to the testamentary law of this country (c). One ground of objection to such an instrument as testamentary, is its irrevocability. However, such a Will may, it should seem, in some cases, be enforced in Equity as a compact. In Dufour v. Pereira (d), Mrs. Camilla Rancer, the wife of Mr. Rancer, being entitled to a legacy under the Will of her aunt, she and her husband agreed to make a mutual Will, which they did, and both executed it; the husband died; the wife proved his Will, and afterwards made another Will. And the question was, whether it was in the power of the wife to revoke the mutual Will. Lord Camden, C. "This question arises on a mutual Will of the husband and wife; the Will is jointly executed by them; (a) Vynior's case, 8 Co. 82, a. Swinb. Pt. 7, s. 14, pl. 2. (b) The making of a Will is but the inception of it, and it doth not take effect till the death of the testator: for omne testamentum morte consummatum est, et voluntas est ambulatoria usque ad extremum Vitæ exitum. Then it would be Ambulatory nature of a and revocable Will. Mutual Will : irrevocable in Equity. whether ever what the wife disposes of, is the residue of her aunt's estate, given to her by her Will. I do not find the cases go so far, as to consider a legacy to a wife, as excluding the husband by implication; but there is no occasion to determine that question: the question is, as the husband by the mutual Will assents to his wife's right, and makes it separate, whether the second Will by the wife is to be considered as void. It struck me at first, more from the novelty of the thing than its difficulty. The case must be decided by the laws of this country. The Will was made here; the parties lived here; and the funds are here. Consider how far the mutual Will is binding, and whether the accepting of the legacies under it by the survivor, is not a confirmation of it. I am of opinion it is. It might have been revoked by both jointly, it might have been revoked separately, provided the party who intended it had given notice to the other of such revocation. But I cannot be of opinion, that either of them could, during their joint lives, do it secretly; or that after the death of either, it could be done by the survivor by another Will. It is a contract between the parties, which cannot be rescinded, but by the consent of both. The first that dies, carries his part of the contract into execution. Will the Court afterwards permit the other to break the contract? Certainly not. The defendant, Camilla Rancer, hath taken the benefit of the bequest in her favour by the mutual Will, and hath proved it as such; she hath thereby certainly confirmed it; and therefore I am of opinion, the last Will of the wife so far as it breaks in upon the mutual Will, is void. And I declare, that Mrs. Camilla Rancer, having proved the mutual Will, after her husband's death, and having possessed all his personal estate, and enjoyed the interest thereof during her life, hath by those acts bound her assets to make good all her bequests in the said mutual Will; and therefore let the necessary accounts be taken" (e). (e) See this judgment also reported in 2 Hargr. Jurid. Arg. 272. 2 Hargr. Jurid. Exerc. 101. |