
    Hubbard against Hubbard.
    
      Nuncupative will, made “ by a mariner while at sea.”
    
   William L. Hubbard, of G-reenport, Long Island, the son of the appellant and husband of the respondent in this suit, at the time of his death was master of the schooner Oregon, a coasting vessel employed in the transportation of coal from Philadelphia to one of the eastern ports.

On the 5th of July, 1849, he was on board his vessel with a load of coal, lying at anchor in the Delaware Bay, under shelter of the breakwater, on account of the weather. He lay about a mile from the main land, and about three miles from the town of Lewes, the nearest settlement. About nine o’clock in the morning of that day, Capt. Hubbard was attacked with cholera, and died at five o’clock in the afternoon. About an hour and a half before he died, the mate of his vessel, in the presence of several other persons, asked him what he should tell his wife, provided he (Capt. H.) did not go home. He replied, “ Tell her that I loved her to the end.” He was asked if he had a will. He said no, that he had one, but after his little boy died it was destroyed. He was then asked what disposition he wished to make of his property. He replied, “ I want my wife to have all my personal property.” The mate then asked if he wished his wife to have all his property, and he replied, “ Yes, all.” Subsequently he told the mate he wished him to see to his business when he got home. He did not speak of a will, or of making any disposition of his property, until spoken to by the mate on the subject. ' He left no surviving children.

The widow applied to the surrogate of the county of Suffolk to have the will proved, and the foregoing facts having been testified to by the mate and by three other witnesses, all of whom concurred in substance in their statements, and in the fact that Captain H., at the time of giving those directions, was of sound mind; the surrogate made a decree, establishing the will as a valid nuncupative, or unwritten will, of personal estate! The father of Capt. Hubbard, who opposed the proof of the will, appealed, and the decree of the surrogate was affirmed by both the Supreme Court and the Court of Appeals.

Those courts holding that the will was made “by a mariner while at sea,” within the meaning of those terms as used in the statute; and that the testamentary disposition was sufficiently established.

(S. C., 12 Barb. 148 ; 8 N. Y. 196.)  