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It is not necessary for our purposes to frame or adopt a set definition of the term "will." The word itself indicates the exercise of choice and the formation of a purpose in the mind.1 Because the law has found it necessary to regulate the expression of one's purpose in disposing of property after death, the word has come to indicate such expression when legally formulated; that is, the evidence of the act instead of the act itself. The will, in its origin A will is a in the Roman law and in its later use in Eng- conveyance. land, was in its nature a conveyance; so much so that at one time the appointment of an executor was necessary to the proof of a will of personal property. As will be seen later, a will of real property still retains its character as a conveyance. There are commonly said to be three forms Forms. of wills: the nuncupative will, or oral declaration; the holograph, which is a will wholly written, dated, and signed by the testator; and the written will, which need not be in the hand of the testator. The oral declaration, which may be made by a soldier or a sailor, is the simplest form of a nuncupative will and the last surviving remnant of the informal power of disposition once possessed by all under the early English law, the privilege having been reserved by express statutory permission in England and in most of our States.
If we consider the remote sources of our present American law of wills we must include not only the law of England, which was brought over by the first English settlers, but also the early customs of the settlers of other nationalities; for instance, the Dutch of New York, the Spanish of the Southwest and of California, and the French of Louisiana. But such laws and customs as were not derived from the English settlers came originally from the Roman law, which was also the original source of the English law and customs concerning wills. Practically, however, the customs of the English settlers and the law of England have determined
1 Such primary sense is well brought out by the expression found in old written wills on Connecticut records: "My mynd is."
our present American law, except in Louisiana. The predominance of the English settlers gave to our colonies the English law modified to suit the conditions existing here, and so modified to a much greater extent in some colonies than in others. These modifications of the English law and differences between one colony and another, to the extent to which they had developed at the time of the American Revolution, are distinctly traceable in our law of to-day, but in the period following the Revolution very simple causes operated to retard further independent development. Among them were the separation of the judicial power from the legislative and executive and the reliance of the trained judiciary upon the printed precedents of England. To understand American law, both legislative and judicial, in its development, it is therefore necessary for us to see what the English law was which the English settlers brought with them, and in general what the principal changes have been in such law in England.
Early English law.
The power to devise land existed in England by virtue of the statutes, 32 Hen. VIII., c. 1 (1540), and 34-35 Hen. VIII., c. 5 (1542-3), commonly known as the Statutes of Wills; which gave to all persons, (except married women and minors) having fee simple estates in possession, reversion, or remainder, full power to devise to any person or persons except to corporations. Under these statutes devises must have been in writing, but there were no special provisions for signature and attestation. Males of fourteen and females of twelve had power to dispose of personalty by will, and, there being no statutory requirements as to wills of personalty, such wills might be nuncupative, that is, made simply by word of mouth, and to be proved by the recollection of witnesses. Such, substantially, was the law as to the power to make wills and their form at the time the first English settlers came to this country. There was a further important distinction between devises and wills of personalty. A devise was regarded as a direct conveyance, and the writing was evidence of title which
might be produced and proved in actions relating to such title, without any preliminary proceeding such as is known to us as the probate of a will. There was no tribunal in which such writings could be probated once for all. The control of the personal property of a decedent, on the other hand, was in the jurisdiction of the ecclesiastical courts, before which the will must be proved or produced, and by which the capacity of the testator and the validity of execution must be ascertained and the executor appointed. Before such probate the will was not evidence of title, but such probate, when had, was conclusive evidence of the title of the executor, from whom, and not from the testator, the legatees took their title.
Statutes of Frauds.
The Statute of Frauds (1676) enacted that devises should be in writing, signed by the testator, and witnessed by three or four credible witnesses, and imposed certain restrictions upon the right to make nuncupative wills of personalty exceeding £30 in value. It also provided that wills of personalty exceeding £30 in value, unless made and proved as prescribed by the Act, should be in writing.
Under the Statute of Frauds, until 1837, while devises had to be signed and attested by three witnesses, wills of personalty might be made in writing without signature or attestation. It was even held that a writing, if proved to have been made by the direction of a testator, constituted his will of personalty. In 1837, by statute 1 Vict., c. 26, it was provided that wills of personalty and realty must be executed alike, requiring the signature of the testator and the signature and attestation of two witnesses. The nuncupative will, subject to the restrictions imposed by the Statute of Frauds, might be made until the Statute of Victoria, disposing of personalty to any amount. Under the latter statute, however, a nuncupative will has no validity unless executed by a soldier in active service, or a mariner at sea, the rights of this privileged class being expressly reserved by such statute. Thus wills of personalty were not assimilated to devises until the Statute of Victoria.
Wills of personalty.
The fact that, during all the period covered by the first settlement of America up to the reign of Queen Victoria, wills of personalty might be executed with so little formality and were probated in the ecclesiastical courts, has had considerable influence in the development of the law of wills, both in England and in this country, especially as the ecclesiastical courts were familiar with and influenced by the civil law. Devises being produced in common-law actions as evidence of title, and being proved before juries as conveyances, were construed and applied by the common-law courts according to the common law. The ecclesiastical courts had no power over devises. If a will disposing of both personalty and realty was offered for probate, they could pass upon the validity of such will only so far as it disposed of personalty. This separation of jurisdiction over wills led to conflict between the ecclesiastical courts and courts of common-law jurisdiction and to dissatisfaction among the people. In 1857 the probate jurisdiction was taken away from the ecclesiastical courts and from certain other courts in particular localities which exercised such jurisdiction by prescriptive right, and given to courts of probate; and under the Judicature Act of 1873 such jurisdiction was vested in the Probate, Divorce, and Admiralty Division of the High Court of Justice.
It will appear from this that the English settlers coming to this country from the first settlement of Virginia, 1607, until 1676, the date of the Statute of Frauds, must have been familiar with the law requiring devises of land to be in writing simply, the practice permitting nuncupative wills of personalty, and the jurisdiction over wills of realty and personalty exercised by the common law and ecclesiastical courts respectively. The Statute of Frauds was not generally recognized as extending to the colonies settled prior to its passage, but its provisions were in many instances adopted and now form the basis of the laws of our States concerning the execution of wills. Most of the States, some of them
1 The Statute of Frauds was enacted almost verbatim in Massachusetts in 1692. In New York it was received by usage as law and re-enacted after the
tardily, have required written wills of personalty to be signed and attested similarly to wills of realty, except in a few States where holographs are permitted. Some States still permit nuncupative wills to be made and proved substantially as provided by the Statute of Frauds, while in others the privilege is reserved solely for the benefit of soldiers and sailors. In a few States there are peculiar survivals of the earlier forms of wills. A holographic will, that is, one wholly written, dated, and signed by the testator, is valid by the laws of some of our States without the attestation of witnesses. This is undoubtedly in some cases a survival of the English written will of personalty as permitted by the Statute of Frauds, with the added necessity for the signature by the testator; in others it is the holograph recognized by the civil law and defined by the Code Napoleon.5
While there were no ecclesiastical courts in the American colonies, yet in those colonies whose governments were more
Revolution, in 1787. In South Carolina, in 1734, the Statutes of Wills and of Frauds, so far as the latter concerned wills, were declared to be in effect, and were re-enacted in 1789. In Virginia it was enacted in 1748, that wills of lands should be attested and subscribed by two witnesses, but no provisions were made as to wills of personalty. It would seem from a statute of Maryland in 1798, that the Statute of Frauds had been there regarded as in force, as it was substantially re-enacted in that year.
1 Connecticut, not until 1848.
2 Connecticut has no provision whatever for nuncupative wills, not even of soldiers and sailors.
3 In Pennsylvania it was enacted in 1705, that devises should be in writing and proved by two witnesses, not requiring any written attestation by the witnesses. By provisions peculiar to that State, wills of realty as well as of personalty may still be established by the testimony of two witnesses, though they have not subscribed their names upon the will. In Tennessee it is now law that a will of personalty need not be attested and need not be written or signed by the testator, but is valid if in writing and established by two witnesses, or the equivalent of their testimony. This is evidently a survival of the old form of English will.
4 In Virginia (Act 1850) will wholly written by testator and signed by him need not have subscribing witnesses. See also Tennessee law referred to in previous note.
5 Holographic wills are permitted by the laws of California, Arkansas, Mississippi, Louisiana, and Texas, also Kentucky, Tennessee, North Carolina, Virginia, West Virginia, North Dakota, South Dakota, Montana, and Utah.