Gould v. Safford's Estate

At the present term the opinion of the court was delivered by Kellogg, J. The question in this case is whether the deelara-larations and requests of the deceased, Joseph P. Safford, to the witness, Frank A. Olmstead in respect to the disposition of his estate after his decease, should have effect as a valid testamentary disposition of his personal estate on the facts found by the county court. The ground upon which it is claimed that these declarations and requests were effectual as a nuncupative will is that, at the time when the same were made, the deceased was “ a soldier in actual military service,” within the meaning of the statute. It is settled by the findings of the county court that these declarations and requests were made by the deceased animo testandi, or with the intention of disposing of his property by will, and while he was m extremis, and conscious of the near approach of death ; and we think that these findings were fully justified by the evidence detailed in the bill of exceptions. * It also appears that the deceased died within two or three days after making these declarations and requests, and no question is made but that he was of full age, as well as of sound mind at the time of making them. If he was not then “a soldier in actual military service,” it is conceded that these declarations and requests would fall within the operation of the general provisions of the statute in respect to nuncupative wills, (Comp. Stat., p. 327, § 8 ; G-. S., p. 377, § 8,) and could not be established as a valid testamentary disposition of his personal estate. It is unnecessary to consider whether the validity of a nuncupa-tive will made by “a soldier in actual military service” is affected by the fact that it was made when the soldier could not be regarded as being in extremis, because it appears that the deceased, at the time of making the alleged testamentary disposition of his property which is now in controversy was actually in extremis; but it is a necessary — 505 — preliminary to the consideration of the principal question in the case that it should be determined whether such a will can he established by the testimony of only one witness. The appellants, who contest the validity of the alleged will in this case, claim that as military testaments were derived from the Roman or civil law, they should be established by the same amount of proof which was required by the rules of the civil law. Under the rules of the civil law, a controverted fact must be established by the testimony of at least two witnesses ; but, under the rules of the common law, the testimony of a single witness, where there is no ground for suspecting either his ability or his integrity, is a sufficient legal ground for belief, even in criminal cases. 1 Starkie’s Ev. 485; 3 Black. Com. 370. The trial of this case was in a court of common law, and we have not been able to find any case in which any other rules of proof than those of the common law have been recognized or held as applicable in such courts. The substance of the last testamentary request, declaration or act of the deceased was the particular fact which was necessary to be judicially established on the trial, and we think that it was sufficient to establish this fact by the same amount of proof which would be required to establish any other fact material to the probate of a will, such as the death of a testator, or that his residence was within the jurisdiction of the probate court at the time of his death. For the proof of a fact of that character, the testimony of a single witness, if uncontradicted, would clearly be sufficient. The rule of the civil law was merely a rule of proof, and did not relate to the essence of the act; and, by tbe analogy of practice in courts of common law, a testamentary disposition of property, such as the one now in controversy, may be established in a court regulated and controlled by the rules of the common law upon the testimony of one witness only. Redfield on the Law of Wills, p. 194; Ex parte Thompson, Bradf. Surr. Rep.. (N. Y.,) 154. At common law, previous to the Statute of Frauds, (29 Car. 2 c. 3,) a parol will, even of lands devisable, was good, and a written will might be revoked by parol. Rolfe, Widow v. Hampden, Knight, 1 Dyer’s Rep., 53, b. pl. 13 ; Brooke v. Warde, 3 ib., 310, b. pl. 81. Nuncupative wills were not forbidden by the Statute of Frauds, but — 506 — they were placed by it under such restrictions as practically abolished them, and the courts have enforced these restrictions by uniformly holding that the provisions of the statute must be strictly complied with to entitle any such will to probate. Such wills are now tolerated or established only upon the clearest proof of the observance of every statute requisite. But the Statute of Frauds provided (§ 23,) that, notwithstanding that act, “any soldier being in actual military service, or any mariner or seaman being at sea, might dispose of his movables, wages, and personal estate as he or they might have done before the making of the act.” The provisions of the Statute of Frauds were first adopted as a part of the statute law of this state in the year 1797, and from that time to the present day, the provisions of section 23 of the Statute of Frauds have formed a part of our statute law. Acts of 1797 in laws of Vermont, Tolman’s Comp, vol. 1, p. 121, § 5 ; Acts of 1821, p. 38, ch, 3. § 19; Slade’s Comp. Laws, p. 337, § 19 ; Comp. Stat. p. 328, § 9 ; G. S. p. 377, § 9. The omission of the word “military” in the Act of 1821, did not affect the meaning of the statute, and this word was again inserted in the statute in the revision of the statutes in the year 1839. No statute law was ever in force in this state by which the testamentary privilege of “a soldier in actual military service,” as that privilege existed before the Statute of Frauds became a law in the year 1677, was restricted, or limited, or in any manner interfered with; and, before that statute was passed, a will of personal estate, made by word of mouth only, would have been as operative as a will executed in writing in the most formal manner. 4 Kent’s Com., 516. The civil law was very indulgent in respect to the wills of soldiers, and if a soldier wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was held a good military testament. 1 Black. Com. 417. No particular formalities were necessary to the validity of such a testamentary disposition of property ; and we'are informed by Swinburne, whose treatise on wills was published before the Statute of Frauds was enacted, that only those solemnities were necessary which are juris gentium ; that no precise form of words was required, and that it was not material whether the testator spoke properly or improperly, if his meaning appeared; — 507 — and that soldiers are clearly acquitted from the observation of the solemnities of the civil law in the making of their testaments. Swinburne on wills, part 1, § 14, part 4, § 26. It is well said in the opinion of the Surrogate in the case of Ex parte Thompson, ubi supra, that "the very essence of the privilege consists in the absence of all ceremonies as legal requisites, or, as Merlin states the proposition, “the form was properly to have no form.” Tried by these rules, there can be no doubt that the declarations and requests of the deceased to the witness Olmstead were sufficient to make a good military testament, and ought to be established as a valid testamentary disposition of his estate if, at the time of the alleged nuncupation, he was “a soldier in actual military service,” within the meaning of the statute ; and this brings us to the consideration of the remaining question in the ease. The words “m actual military service,” used in section 23 of the Statute of Frauds, and in the revised wills act of 1 Vict., ch. 26, § 11, received a full consideration in the case of Drummond v. Parish, 3 Curt. 522, (7 Eng. Eccl. Rep., 496, S. C.,) in which it was held that these words referred to and were intended to designate a service on an expedition, and that the privilege, as it respects the British soldier, was limited and confined to those soldiers only who are on that particular service. We are entirely satisfied with this interpretation of the statute, but what shall be considered as an expedition is, in some measure, a question of fact depending on the circumstances of the particular case, The deceased was a soldier belonging to a company and regiment which formed a part of the “ Army of the Potomac” in the recent war of the rebellion, and his company and regiment were unquestionably “in actual military service,” in the sense in which those words were interpreted in the case of Drummond v. Parish, on the 13th of September, 1862, when he made the declarations and requests which are relied on as being of a testamentary character in this case. He had been with his company and regiment through the battles of the peninsular campaign, and, in the latter part of the previous month of August, had been transferred with the entire “Army of the Potomac,” to the vicinity of Washington. The rebel forces, inspired by their successes on the Chickahominy and at — 508 — Cedar Mountain, which were then recent, were threatening an- invasion of Maryland and Pennsylvania; and the second battle of Bull Pun, and the battle of Chantilly at the close of August and the beginning of September had resulted disastrously to the Union forces. In the first week of September, the safety of the national capital was seriously endangered by the presence of a victorious enemy, who soon after crossed into Maryland, and directly threatened both Washington and Baltimore. Washington was in fact a beleagured city, and its entire vicinity was a tented field, and the whole “Army of the Potomac” was engaged in constant movement to cover these important cities and repel the invasion of the enemy. The rebel forces which were engaged in this invasion were decisively defeated in the battles of South Mountain and Crampton’s Gap, on the 14th of September, and at Antietam on the 16th and 17th of September, and were driven back into Virginia. The company and regiment to which the deceased belonged was a part of the force which was kept in daily movement to meet the enemy and repel the invasion. While the regiment was on the march to find and engage the enemy, the deceased and the witness, Olmstead,'who had been left behind on picket duty, rejoined it at Tenallytown, a village situated in the District of Columbia, a few miles from Washington. The deceased was then sick and very weak, and 'he and Olmstead, who was also sick, were ordered by their captain, with the approval of the regimental surgeon, “to fall out, and come on when they got rested.” On the next day, both he and Olmstead being unable to go on, reported to another army surgeon, by whom they were sent in an ambulance to the army medical director at Washington, By this medical director they were sent to a hospital for soldiers, called Harewood Hospital, situated in the district of Columbia, about two miles from Washington. This hospital had then been recently established, and was without barracks or other shelter except tents, and its arrangements and conveniences were of the most temporary character. It was in fact nothing more than a field hospital at that time. After arriving at the hospital, the deceased and Olmstead were put into a hospital tent in which were eight persons, some of whom were sick and some wounded, but they were then so weak that they could render no — 509 — assistance in putting up the tent, and were not even able to help themselves. After they were put into this tent, they were examined by a physician in attendance who found the deceased in the last stage of pulmonary disease, and told him, among other things, that he had not long to live, and, “that if he had any requests to make, or wished to do any thing to dispose of his property, he had better do it immediately.” This was on the 13th of September. The deceased, after he was so informed by the physician, and on the same day, made the declarations and requests to the witness Olmstead which are proposed to be established as a testamentary disposition of his personal estate, in the presence of the person occupying the tent with him. It is apparent that, at that time, all facilities for making- a formal will were as much if not more inaccessible to him in the hospital than when he was on the march with his regiment. When he was ordered by his captain at Tenallytown “to fall out and come on when he got rested,” he was in no sense relieved from military duty or command, but was subject at any moment to be called upon to rejoin his company. He could not be considered as absent on a furlough, for he had no leave of absence from military service, and he remained behind in obedience to an order. The entire army to which he belonged was at that time “ on an expedition,” and, in our judgment, he was as much on that expedition while in the hospital tent at Hare wood Hospital as when he was in his own tent with his company and regiment at Tenallytown. He was then in the presence of actual war, and was surrounded by its perils; and, although he was in a hospital, he was as much in the line of military service, if he was there in obedience to an order from proper authority, as he would have been if he had been left behind on picket duty. In the opinion delivered in the case of Drummond v. Parish, ubi supra, it is stated that it appears from the preface to the life of Sir Leoline Jenkins, the eminent civilian who was said to have been associated with Sir Matthew Hale and Lord Keeper Guilford in the preparation of the Statute of Frauds, that he claimed the merit of having in that statute secured to the soldiers of the English army the full benefit of the testamentary privilege of the Roman soldier. If we regard the nature and object of this privilege, and the situation — 510 — of the deceased, at the time he made the declarations and requests to the witness Olmstead in respect to the disposition of his estate after his decease, we can come to no other conclusion than that, in the sense and meaning of the statute, the deceased was at that time “ a soldier in actual military service,” and that there was no error in the finding of the county court to this effect. The judgment of the county court in favor of this alleged nun-cupative will of the deceased as a valid testamentary disposition of his personal estate is accordingly affirmed,,