
    The Lessee of Gillis and Wife v. John Weller.
    Under the act of 1824 a nuncupative will is valid to pass real estate.
    This is an action of ejectment from the county of Montgomery.
    The case was submitted to the court on the last circuit iipon the following agreed statement of facts.
    “ It is agreed that Daniel H. Reedor died seized in fee of the promises in the declaration mentioned; that by his verbal will dated J uly 28, 1828, he devised his real estate to his sons, viz., Abraham, Isaac, John J,, and Daniel H. Reedor, and gave pecuniary legacies to his daughters, viz., Elizabeth Gillis, Polly Jober, and Sarah Gillis; that this will was proved in the court of common pleas of Montgomery county, at the August term, 1828» as appears by reference to said will, a copy whereof, marked A,, is hereto attached; that on April 9, 1829, the devisees, his sons, made a partition among themselves of the said premises; that subsequently the defendant, by several conveyances in fee from said devisees and others deriving title under them, dated August 20, 1829, February 22, 1830, March 9, 1830, November 22, 1830, January 27,1831, March 10,1831, and September 25,1834, acquired all the rights and interest of said devisees to said premises, and has been in the possession of the same since the said several conveyances; that Elizabeth Gillis, one of the lessors of the plaint-4-63] iff *is a daughter and one of the heirs at law of the said Daniel H. Reeder; that the lessors of the plaintiff have received the sum of §200, the amount of the legacy bequeathed to her by said verbal will, from the administrator of the said Daniel H. Reeder, deceased.”
    Odlin, Schenck & Howard, for the plaintiffs,
    maintained that a nuncupative will could under no circumstances pass real estate in Ohio. That the right to make such a will did not exist at common law, and therefore could not be exercised but by force of some positive statute. They cited 1 Chase’s L. 182, 492, 571; 2 Chase’s L. 929, 1305 ; 3 Chase’s L. 1785 ; 6 Cruise Dig., tit. Devise, sec. 1, 10; Toller’s L. Ex’rs, 1, 2; Prince v. Hazleton, 20 Johns. 902; Harwood v. Goodright, Cowp. 90; Swinburne on Wills, 28; Just. Inst. B. 2, tit. 10, sec. 14. Nuncupative wills are not to be favored by courts of justice. Prince v. Hazleton, 20 Johns. 902; Matthews v. Warner, 4 Ves. 195, rt. (a); McCune’s Devisees v. House et al., 8 Ohio, 144.
    Crane & Davies, for the defendant
    insisted, that under the act of 1824, a nuncupative will was valid. They cited 4 Kent Com. 501; Swinburne on Wills, 12 ; Bank United States v. Dunseth, 10 Ohio, 22.
    
      
      This was a remarkable case. Mr. Oole, at a very advanced age, married a young woman, who, during his life, did not conduct herself with propriety. After his death she set up a nuncupative-will, said to be in extremis, by which the whole estate was given to her, in opposition to a written will made three years before the testator’s death, giving £3,000 to charitable uses. The nuncupation was proved by nine witnesses. Upon the appeal to tho delegates from the sentence of the prerogative court in favor of the written will, Mrs. Cole offered to go to a trial at law in a feigned action, submitting to be bound by the result. Upon the trial at the bar of K. B., it appeared that most of the witnesses for the nuncupation were perjured, and that Mrs. Cole was guilty of subornation. After that she applied for a commission of review, which was refused; and on that occasion Lord Nottingham said: “I hope to see one day a law that no written will should be revoked but by writing.” This is said to be the principal case which gave rise to the statute of frauds.
    
   *Wood, J.

By the statement of facts, it will be seen a [1-64 single inquiry only is designed to be presented for our consideration. It is this: Whether a nuncupative will made under the act of the general assembly of Ohio of February 26, 1824, is sufficient to pass real estate ?

It will be found by reference to an elementaxy writer, that a devise of lands in England was only authorized by positive enactment ; and that during the reign' of Henry VIII, the power to devise real property was first conferred by act of Parliament, but only then to a limited extent; but during the reign of Charles II, the power was further enlarged and became universal. 2 Bl. Com. 12, 13, 491. In the United States, it is believed, this power will be found only as the result of legislation. By the ordinance of 1787, for the government of the territory northwest of the Ohio, a devise was required to be in writing. The territorial law of 1795 is believed to have made the first provision for a verbal will in Ohio, and that was adopted from the statutes of Pennsylvania. It uses the term estate, and limits the estate to be conveyed by a nuncupative will to eighty dollars. By the term estate, which is employed in this statute, is clearly signified, not only personal peroperty, or the interest that a testator has therein, bat also such an interest as he has in lands, tenements, and hereditaments; and it seems to follow, that this act conferred power to devise real property by a verbal will. Following up the legislation of Ohio, it will be found, that in January, 1805; the act of 1795 was repealed and provision made for disposing of personal property only by nuncupative will. As the power existed under the former, it therefore ceased to exist under the latter act. The act of 1808 repeals the law of 1805, and prescribes the mode of execution of a verbal will, without any direction as to the nature or limitation of the estate it may operate to convey. The first section of this act provides, ' however, that every male person, etc., shall have power by last will and testament, in writing, to dispose of both real and personal estate. If personal property were not here enumerated, it might be contended perhaps with some plausibility, that a verbal will was 465] *not intended to pass the realty. But as the term written, as used in this section, applies to both species of estates, and as the act makes provision for the due execution of a verbal will, and leaives it without restriction, as to what may pass under it, it would seem to be general in its application, and nothing short of statutory provision can limit it to the personalty. The same provision is cojfied into the acts of 1810,1816, and 1824, in relation to verbal wills. The act of 1824 was in force when this will under which the defendant claims was made, and if we are right in our deductions, judgment should be given for the defendant; and we are 'also confirmed in this opinion by the fact that the act of 1831 expressly restricts nuncupative wills to personalty, without limitation as to the amount. Judgment for the defendant.  