NUNCUPATIVE WILL. An oral will, de clared by a testator in extrenvis, or under circumstances considered equivalent thereto, before witnesses, and afterwards reduced to writing. 4 Kent 576; 2 Bla. Cora. 500; 1 Jarm. Wills, 6th Am. ed. •78.
When a roan lieth languishing for fear of sudden death, dareth not stay the writing of his testament, and therefore he his curate and others to bear witness of his last will, and declareth by word what his last will is. Perk. Cony. § 476; Bac. 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 Mas sachusetts, Minnesota, New York, Rhode Island, Virginia, West Virginia, and Mon tana. In Georgia, the statute embraces both real and personal property. In Californiti 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 be queathed, similar to those of the English statuie of frantic Statutes relating to nuncupative wills are strictly construed; 2 Phillim. 194; Morgan
v. Stevens, 78 Ill. 287; Appeal of Taylor, 47 Pa. 31; Lucas v. Goff, 33 Miss. 629. The testator must be in extremis, overtaken by violent sickness, in contemplation of death, and without time to make a written will; 1 Addams 389; Prince v. 20 Johns.
(N. Y.) 502, 11 Am. Dec. 3O7; Werkheiser v. Werkheiser, 6 W. & S. (Pa..) 184; Scaife v. Enmons, 84 Ga. 619, 10 S. E. p097, 20 Am. St. Rep. 383; but see Johnston v. Glasscock, 2 Ala. 242; Harrington v. Stees, 82 Ill. 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 ; Babi neau's Heirs v. Le Blanc, 14' La. Ann. 729; Biddle v. Biddle, 36 Md. 630; Morgan v. Ste vens, 78 Ill. 287; Mulligan v. Leonard, 46 Ia. 694; Smith v. Smith, 63 N. C. 637; testamen tary capacity must be most clearly proved; Dorsey v. Sheppard, 12 Gill. & J. 192, 37 Am. Dec. 77; Morgan v. Stevens, 78 Ill. 287. In "actual military service," is held to mean during warfare, and while on an expedi tion; 3 Curt. 531; Leathers v. Greenacre, 53 Me. 561; but this rule has 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. The term mariner applies every one in the naval or mercantile service; Ex parte Thomp son, 4 Bradt (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.