Nuncupative Will

An oral will, declared by a testator tn ( xtremis, or under circumstances considered equivalent thereto, before witnesses, and afterwards reduced to writing. 4 Kent 576; 2 Bla. Com. 500; 1 Jarin. Wills, 6th Am. ed. *78. When a man lieth languishing for fear of sudden death, dareth not stay the writing of his testament, and therefore he prayeth his curate and others to bear witness of his last Will, and deelaretli by word what his last will is. Perk. Conv. § 476; Lac. Abr. 305; Male’s Case, 49 N. J. Eq. 266, 24 Atl. 370. In early times this kind of will was very common, and before the statute of frauds, by which it was virtually abolished, save in the case of soldiers and sailors, was of equal efficacy, except for lands, tenements, and hereditaments, with a written testament. Such wills are subject to manifest abuses and by stat. 1 Viet. c. 26, 9, 11 (preceded by 1 Will. IV. c. 20), the privilege is confined to soldiers in actual service, and sailors at sea, and extends only to personal estate. Similar provisions have been enacted in Massachusetts, Minnesota, New York, Rhode Island, Virginia, West Virginia, and Montana. In Georgia, the statute embraces both real and personal property. In California and the Dakotas, the decedent must have been in actual military service, or at sea, and in immediate fear of death. In the other states, nuncupative wills by persons in extremis are still recognized, subject to restrictions as to amount of property bequeathed, similar to those of the English statute of frauds. Statutes relating to nuncupative wills are strictly construed; 2 Phillim. 194; Morgan v. Stevens, 78 111. 287; Appeal of Taylor, 47 Pa. 31; Lucas v. Goff, 33 Miss. 029. The testator must be in extremis, overtaken by violent sickness, in contemplation of death, (N. Y.) 502, 11 Am. Dec. 307; Werkheiser v. Werkheiser, 6 W. & S. (Pa.) 184; Scaife v. Emmons, 84 Ga. 619, 10 S. E. 1097, 20 Am. St. Rep. 383; but see Johnston v. Glasscock, 2 Ala. 242; Harrington v. Stees, 82 111. 50, 25 Am. Rep. 290; the deceased must have clearly intimated by word or sign to those present that he intended to make the will; Dockum v. Robinson, 26 N. H. 372; Babineau’s Heirs v. Le Blanc, 14 La. Ann. 729; Biddle v. Biddle, 36 Md. 630; Morgan v. Stevens, 78 111. 287; Mulligan v. Leonard, 46 la. 694; Smith v. Smith, 63 N. C. 637; testamentary capacity must be most clearly proved; Dorsey v. Sheppard, 12 Gill. & J. 192, 37 Am. Dec. 77; Morgan v. Stevens, 78 111. 287. In “actual military service,” is held to mean during warfare, and while on an expedition; 3 Curt. 531; Leathers v. Greenacre, 53 Me. 561; but this rule lias been somewhat freely treated; Gould v. Safford’s Estate, 39 Vt. 498. Sailors must be serving on shipboard; 2 Curt. 339; Warren v. Harding, 2 R. I. 133. Tiie term mariner applies to every one in the naval or mercantile service; Ex parte Thompson, 4 Bradf. (N. Y.) 154. See note to Sykes v. Sykes, 20 Am. Dec. 44; Male’s Case, 49 N. J. Eq. 266, 24 Atl. 370. See Military Testament. NUN DIN/E (Law Lat.). In Civil and Old English Law. Fair or fairs. Dion. Ilalicarnass. lib. 2, p. 98; Law Fr. & Lat. Diet. Hence N undmation, traffic at fairs. NUNQUAM INDEBITATUS (Lat. never indebted). In Pleading. A plea to an action of indebitatus assumpsit, by which the defendant asserts that he is not indebted to the plaintiff. Mc Kelv. PI. 31; 6 C. & P. 545; 1 M. & W. 542; 1 Q. B. 77. In England, this plea lias been substituted for nil debet, q. v., as the general issue in debt on a simple N contract.