
    BOTSFORD against KRAKE.
    
      Surrogate’s Court, Otsego County ;
    
      February, 1866.
    Will.—Nuncupative Will.
    An officer in the army of the United States in May, 1864, after it had commenced to move on Richmond, wrote and sent a letter to his sister saying if he was killed or did not return, he wanted her to have his property. He was killed in August, 1864;—Held, that this portion of the letter was a valid will by a soldier, and should be admitted to probate as such.-
    Whether a testamentary declaration made by a soldier, in actual military service, is valid as a will, although not made in sickness or peril of immediate death—Query?
    Probate of a will.
    Barnard Phenis, the deceased, was a lieutenant in the 76th New York Volunteers, in the army of the United States, and had been a soldier from June, 1862, to the time of his death, which took place on or about the 18th day of August, 1864, at or near the Weldon Bail Boad in Virginia. He died from a wound received in battle the day of his death. ■ At the time of his enlistment, and of his death, he was an inhabitant of the town of Cherry Yalley in Otsego county. He left him surviving Mrs. Jane Botsford, a sister, Mrs. Mary McKellop, a sister, and Miss Mary Brake, a daughter of a deceased sister, his next of kin. In May, 1864, after our army had moved on Richmond, he wrote a letter to his sister, Mrs. Botsford, in which he informed her that his regiment was going to Richmond, and in case of his death, he wanted her to have his property. On the day of, his death, it appears that something was said by deceased, or by his nurses, and attendants, by which it was understood that deceased desired said Jane Botsford to have his property. He was competent, over 30 years of age, and left personal property. Mrs. Botsford propounded this letter,"and the declaration, as a will.
    
      N. C. Moak, for respondent.
    I. It should be borne in mind that there are three kinds of wills known to the law. 1. A will executed, and attested with all the formalities required by statute. 2. A holograph, or will in the handwriting of the testator, which, although not witnessed or declared to be witnessed to be his will, from its testamentary character, shows on its face it was intended as a will in case of death. (Worcester’s Dict., Tit. Holograph, Burrill's Law Dict., same Tit). And it may be a deed, a letter or any writing in the testator’s own handwriting evincing a desire in case of death, to dispose of his personal property. (Redfield on Wills, 168, 169, 176, 542; 1 Paige, 369, 370.) 3. The tim’d class are nuncupative, or unwritten wills. These are-simply verbal declarations of the testator, showing how he desired his property disposed of in, ' case of death. (Worcester's Dict., Tit. Nuncupative ; Burrill’s Law Dict., Tit. Nuncupative ; 1 Paige, 369, 370.)
    II. In consequence of a frightful case of perjury in England, nuncupative wills proper, or those unwritten, made by any person except he be a soldier or sailor, were, by statute, surrounded by many safeguards (4 Kent. Com., 517; marg.p). Our statutes (enacted in 1813,) originally read, almost verbatim with the English statute, as follows :
    XIV. Añd be it further enacted: That no nuncupative will shall be good where the estate thereby bequeathed shall exceed the value of seventy-five dollars, unless the same shall be proved by the oaths of three witnesses at the least, who were . present at the making there'of, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the ’persons present, or some of them,, bear witness that such was his' will, or words to that effect; nor unless such nuncupative will be made in the time of the last sichness of the deceased, and in his dwelling house, or where he had been resident for ten days or more next before the making of such will, except where such person was surprised or taken sick, being from home, and died before his return to -the same.
    XV. And be it further enacted, That after six months from the speaking of the pretended testamentary words, no testimony shall be received to prove any nuncupative will, except the said testimony, or the substance thereof, was committed to writing within six days after the making of the said will: and further, that no letters testamentary or probate, of any nuncupative will, shall pass the seal of any court, until 'fourteen days at the least after the decease of the testator shall be fully expired, nor shall any nuncupative will be at any time -received to be proved unless process hath first issued to call in the widow, or next of kin of the deceased, to the end that they may contest the same if they please.” (1 Revised Laws, 367, §§ 14, 15.)
    These sections applied to nuncupations made by civilians only. The statute contains the same exceptions in favor of soldiers and sailors, as its English prototype, as follows. .
    “ XVII. And be it further enacted, That widows may bequeath the crop in the ground of their lands holden in- dower, and that any soldier being in act/ual military service, and any mariner being at sea, may dispose of his personal estate in the same manner as if this act had not been passed”
    
    It will be seen that neither the English statute nor our Eevised Laws applied to a holograph, or written will, and hence, in this State, any person could make such a will.
    In Watts v. Public Administrator, the Surrogate of the city of New York admitted a holograph will to probate, regular in form, though unsigned, and with a testatum clause without witness, notwithstanding it was claimed, that the fact that it was unsigned, and with a testatum clause, showed the testator intended something more should be done to complete it. (See the able opinion of Campbell, Surrogate, 1 Paige, 352—361.) The Chancellor, however, reversed the Surrogate, (1 Paige, 348— 383,) conceding the will would have been valid—signed or un signed-—if there had been nothing on its face showing the testator intended to do something further to complete it, but thought the testatum clause sufficient evidence that he intended to signit, and procure witnesses upon it before it should take effect. On appeal to the Court of Errors that Court reversed the Chancellor, and affii-med the Surrogate’s decree admitting the will to probate. (4 Wend., 168.)
    So Mason, J. says, (8 N. Y. Rep., 201) “ a will of personal estate, if written in the testator’s own hand, though it has neither his name nor seal to it, nor witnesses present at its publication, was held effectual, provided the handwriting could be proved.”
    Nor is it necessary that a holograph will should be in any - particular form. (Redfield on Wills, 168—170; 176; 542, and cases cited) Such was the law of our State in 1830. Has it been changed, as regards soldiers and sailors.? The Revisers, in their notes, say “sections 25, 26, 27 related to nuncupative wills, and conformed with some new guards and restrictions to the 14th, 15th and 17th sections of the act of 1813, and to 20 Johns., 502; but the legislature substituted in lieu thereof § 22 R. 8., abrogating such wills, except when made by soldiers or mariners.” The 22nd section referred to, is as follows: “No nuncupation or, unwritten will bequeathing personal estate, shall be valid, unless made by a soldier, while in actual military service, or by a mariner while at sea. (2 R. S., 60, § 22, marg. p)
    
    As regards soldiers and sailors no change was intended. As to them the law was left precisely as. it existed at common law. Judge Mason says (8 N. Y., 199.) “ As to the wills of soldiers in actual military service, and mariners at - sea, they are left entirely untrammeled by our statutes, and a/re governed by the principles of the common law. The exceptions in our statute of wills in favor of soldiers and mariners was taken from the 29 Car., 2, chap. 3, and is precisely the same, and the same exception is retained in England by their new statute of wills.” (1 Vict., 26, § 11.) It is true that sec. 40 of our statute of wills declares that “ every last will and testament of real and personal property, or both, shall be executed and attested in the following manner.”
    Tiiis section must be read in connection with section 22, supra, so as to make the entire statute harmonious, and to give a meaning to both sections. The correct reading of secs. 22 and 40 will then be as follows : “Every last will .of ■real and personal-property, or both, unless made by a soldier, ■while in actual military service, or by a mariner while at sea, -shall be executed and attested in the following manner. - * * , The will of a soldier while in actual military service, or of a mariner while at sea, may be made,in the same manner as if ' this act had not been passed,” and such our courts have held 'to be the real meaning of the two sections (8 N. Y., 199 ; 4 Bradf., 154).
    III. In this case the testator, while on an expedition—after - our army had commenced its advance on Richmond, 1864— ■ wrote a letter saying if he never returned, he wanted the respondent to have his property.. He was clearly “ in actual ■ military service,” and on an expedition (Redf. Wills, 191, 4 Bradf., 158),. so that the question whether a soldier while in -camp, or on garrison duty,, can make a valid will,, without -.observing the formalities required by statute, is not in the - case. It is difficult to see why such an one might not, under the broad language of our "statute, which only requires that he be in actual military service. Nor do I see how it can be -.■claimed that the. testator, if a soldier, must be in extremis, "if by this be meant sick or wounded, and expecting immediate death. It is true the case of Prince v. Hazelton (20 Johns., 502,) very properly holds that in case of a civilian the testator must be in-that condition, for the very statute under which it was decided (1 Revised Jaws, 867, §§ 14, 15), expressly declared, that to entitle a civilian to make a nuncupative will, it" must “ he made in the time of the last sickness of the deceased.” .Neither the English statutes, the Revised Laws, nor the Revised Statutes contain any such provision in regard to soldiers or sailors, and what right has the- court to require any requisite-except what the law-making power have seen fit to declare shall exist ? It is possible that in some cases, where the point was not up, the courts in speaking of soldiers and sailors, without having attention called to the difference between them and civilians, may have used the same language; but I have been unable after diligent search to find a case in this country or England denying probate to a soldier’s or sail- or’s will, on the ground that he was not at its making sick or wounded, while several are reported where probate has been gr.antpd to thosq made-when ,the testator was not in that con dition. This being a written will like that in Watts v. Public Administrator (1 Paige, 348, 4 Wend., 168), and the law ilot having been changed as to soldiers and sailors, the decision in that cáse should control. The will in that case was made' while the testator was in good health, and many years before he died (1 Paige, 355). So in Hattat v. Hattat (4 Hagg., 211, Redf. on Wills, 176), the writing was made in the account book eight months before death. Redfield says, “ It is left undetermined in Hubbard v. Hubbard (8 N. Y., 203), whether this requirement in regard to nuncupative wills, namely, that they must be made while the testator is conscious of the near' approach of death, is applicable to the wills of soldiers and seamen; but it is claimed that as this requirement existed long before the statute of frauds, it must be regarded as applicable to such qases, since by the express terms of the statute, those classes of persons are allowed to dispose of their effects ‘ as'before the making of this act.’ But the decided cases do not all seem to conform to this view.” (Redf. Wills, 190—1.) The learned author does not seem to have had his attention' called to the distinction between soldiers and civilians, which renders the decisions harmonious.
    Again he says: (p. 192,) “ By the civil law, the ordinary formalities of executing nuncupative wills were dispensed with in favor of soldiers, and their wills were held valid, although they should neither call the legal number of witnesses, nor observe any other of the ordinary solemnities in the execution of such instruments, and the same indulgence is' held by Swinburne applicable to soldiers in England.”
    Hr. Surrogate Bbadfobd, one of the most learned judges upon the subject of wills in America, says' in Ex parte Thompson (4 Bradf., 160), “As well because the wills of soldiers and mariners were excepted from the operation of the provisions of the statute of frauds, as for the reason and grounds of the exception, and the peculiar character of the military testament, it was never held requisite that the nuncupations should be made during the last sickness.”
    
    Judge Mason says, (8 N. Y., 200—201), “ The civil law was extremely indulgent in regard to the wills of soldiers. If a soldier wrote anything In bloody letters upon his shield, or in the dust of the field with his sword, it was héld a good military testament. The common law however has not extended this privilege so far as the civil. Blackstone says that soldiers in actual military service may make nuncupative wills,. and. dispose of their goods, wages, and other personal chattels, without those forms, solemnities and expenses which the law requires in other cases.” ■
    The English statute, as above shown, is the same as ours.
    In re Parker (2 Swaby and Tristram, 375, Redf., 200, note). “ Where the master of a vessel, being at am intermediate port, wrote and forwarded by post a letter of which some portion was testamentary, the vessel being subsequently lost at sea, it was held-that he was a mariner at sea, and that such letter being in his handwriting, and testamentary, was entitled to probate.”
    
    So in goods of Milligan (2 Robertson, 108), where the testator on the 5th of August, 1848, being perfectly well, wrote and sent a letter, some portion of which was testamentary, and did not die until May 16th, 1849, it was held the testamentary portion should be admitted to probate.
    The High Court of Errors of Mississippi, in Anderson v. Prior (10 Smedes and Marshall, 620), held, “ It is competent for a volunteer in the army of the United States, in Mexico, who is a. citizen of Mississippi, to make his last will and testament, while abroad in Mexico, disposing of property in that .State.
    “ In such case, a letter written in the handwriting of such volunteer, in which he expresses his desire as to the disposition of his property, in case of his death, was held to have been properly admitted to probate as his will.”
    The reason why soldiers and sailors are allowed to make informal wills is obvious. They may. desire to make them when away • from the conveniences for so doing—when no counsel is at hand to advise or conduct the making-^-when wills, if made, could not be easily or safely kept, to await the death of the testator—and many reasons equally cogent will readily occur.
    They are not required to be "wounded or sick, when the will is made, by reason (as stated by Mr. Surrogate Bradford, supra), of the peculiar character of the military testament.
    Suppose a soldier should learn while on an expedition that some relative had died, and he had become possessed of a large property. If he could only make a valid will after he was sick or wounded, and was in expectation of immediate death, he might now be able to do so. While perfectly well a bullet from the enemy might terminate Ms life without an opportunity to speak a .word. It may be said that this would be an extreme case, but when we consider that for months, and even years, we have had over a million soldiers in the field, it is by no means an improbable one. The true rule is to require nothing more than what the statute says shall entitle the soldier to make a will. If tne courts are allowed to engraft, by construction, one requisite, they may a multitude, and the soldier be substantial! y deprived of the right to make a will. He who lays down his life for his country, has a right to ask that his solemn request as to the disposition of this world’s goods shall be respected, and carried out by it.
    
      George Brooks, guardian for Mary J. Krake,
    cited and commented upon 12 Barb., 148; 8 N. Y., 196; Dayt. Surr., (3rd ed) 126, and other authorities there cited.
   E. M. Caul, Surrogate.

The deceased, a volunteer from this State in the actual service of the United States, was wounded in battle, on the Weldon R. R., in Virginia, August 18th, 1864, and died same night. Previous to his death, in a letter written to Ms sister, Jane Botsford, he expressed a desire and intention in the event of his death that his property, which consisted of personal estate, should go to his sister, said Jane Botsford. On the eve of his death, it appears that the subject that deceased desired to have Ms sister Jane have Ms property, was discussed by Ms attendants, although they do. not swear that he said so. I am therefore of the opinion it does affirmatively appear that deceased intended to make a testamentary disposition of his .property, and that his sister, J ane Botsford, was to be the sole legatee therein. But it is insisted that our statutes do not allow or tolerate such disposition of property, except in cases of soldiers and seamen, and that they must be in extremis. Deceased being a soldier, the only question remaining is, does the statute restrict the making of this class of wills not only to the class of persons mentioned in the statute, but also to the condition of the deceased at the time of making the disposition. Judge Beadfobd holds, in Ex parte Thompson (4 Bradf., 154), that there is no restriction as to their con dition. In Hubbard v. Hubbard (12 Barb., 154), the court says the deceased must be in extremis. The case went to the Court of Appeals, and in that court was disposed of without any reference to the question, except saying that it was not necessary to decide it. On a careful examination of both the cases above referred to, I find the question was not material to the disposition of either, and neither is therefore binding as an authority. I am inclined to the opinion that this is not a ease where it becomes material to pass upon this question for the reason that the facts in this case do not render it absolutely necessary to pass upon it. At the time this letter was written, the deceased was in the army, on an expedition, and in that portion where active operations were constantly .going on. It was moving on to Bichmond, and from that time to the time of his death'was constantly, and almost daily engaged in fighting, so that, in fact there was no period of time during the season of 1864, in that part of our army, but a soldier might be said to be in peril of his life. He was constantly exposed, or liable to be constantly exposed, to death, and this disposition of his property was clearly made in view thereof. He cannot be said to be in extremis by sickness, disease, &c. but the peril of death,- if required, I think may be from any other cause, and existed in this case by the liability of and the danger from constant engagements in battle. Counsel for the proponent argued that it was only requisite that the soldier should be “ in actual military service.” This is certainly, at this time, an important question, but I do not deem it necessary to pass upon it. I think this one of the cases intended to be provided for by our statute, and that the disposition made by the deceased is valid. That portion of the letter must f,be admitted to probate as a will.

Decision accordingly.  