By the Court,
Brown, J.The only question in this cause is upon the validity of the unwritten will of William L. Hubbard, referred to in the proceedings. The decree of the surrogate of the county of Suffolk, adjudged the will to be genuine and valid, admitted it to probate, and directed that letters of administration, with such will annexed, should issue to the appellant, Maria J. Hubbard. From this decree, the respondent, Elias Hubbard, appealed to the special term, where the decree of the surrogate was reversed for error of law, and the cause is now before the general term, upon appeal from the last mentioned order or decree. The deceased was the husband of the appellant, and the son of the respondent, and the will relates exclusively to personal property. He was at the time of his death the master of a coasting vessel called the Oregon, employed in the transportation of coal from the city of Philadelphia to one of the eastern ports. On the 5th of July, 1849, at nine o’clock in the forenoon, while the vessel with the cargo on board, was lying wind-bound at the mouth of Delaware bay, under the breakwater, and about a mile distant from the main land, and three miles from *153Lewiston, the nearest settlement, the deceased—then being on board and in command of the vessel—was seized with the Asiatic cholera. The will was made and published while the vessel and the deceased were in this situation, in the presence of four witnesses, between three and four o’clock in the afternoon; and within one hour thereafter, he died. At the place where the vessel lay, the bay between Capes May and Henlopen is eighteen miles wide and the tide ebbs and flows six feet. The witnesses were not contradicted, and the proof made out, very conclusively, the following facts. 1st. The making and publication of the will; and that it was not reduced to writing. 2d. That the deceased was then of sound mind and memory, and not under any degree of restraint. 3d. That he was in his last sickness, and a mariner actually at sea, at the time the will was made and published. The decree made at the special term assumes that all the facts of the case are true; for had the decree of the surrogate been reversed upon a question of fact, it would have been the duty of the court to direct a feigned issue to be made up and tried, pursuant to the provisions of the 57th and 58th sections of the act in regard to “wills and testaments of real and personal property, and the proof of them.” (2 R. S. 66, 67.)
A will is defined to be “ a declaration of the mind, either by word or writing, in disposing of an estate; and to take place after the death of the testator. It is in Latin called testamentum, i. e. testatio mentis, the witness of a man’s mind; and to devise by testament is to speak by a man’s will, what his mind is, to have done after his death.” (7 Bac. Ab. 299, tit. Wills and Testaments, A.) Our notions of a will which is to dispose of an estate after the death of the owner, are associated with the idea of a written instrument, subscribed by the person whose estate is to pass, and attested by two or more witnesses. The requisites of writing, of subscribing, and of attesting witnesses, so indispensable to the force and validity of all ordinary wills of the present day, were not always, nor are they now, universally demanded. The common law is an ancient institution having its origin in a remote period of time when learning had few votaries, and the art of writing was comparatively unknown. *154It adapted itself to the condition of the people amongst whom it was recognized as the rule of action; and as very few amongst them could write, a will of chattels, by the common law, was good without writing. (Swinburne on Wills, 88. 4 Kent’s Com. 516.) But for the statute, which demands that wills shall be written and executed, published and attested, after a prescribed fashion, such would be the law at this day. Wills are of two sorts. “ First, in writing, which is, where the mind of the testator, in his lifetime, by himself, or some other by his appointment, is put in writing: or, secondly, by word, or without writing, which is, where-a man is sick, and for fear that death, or want of memory or speech, should surprise him, that he should be prevented, if he staid the writing of his testament, desires his neighbors and friends to bear witness of his last will, and then declares the same presently, by word, before them: and this is called a nuncupative or mincupatory will or testament ; and this being after his death proved by witnesses, and put in writing by the ordinary, is of as great force for any other thing but land, as where at the first in the life of the testator it is put in writing.” (7 Bac. Ab. 305, tit. Wills and Testaments, D.) Chancellor Kent, in the very learned and elaborate opinion delivered by him in Prince v. Hazleton, (20 John. 502,) declares it to have been the uniform language of the English law writers from the time of Henry 8, down to that day, that nuncupative wills were confined to extreme cases and to be justified only upon the plea of necessity. Mr. Blackstone, in the second volume of his commentaries, page 500, after giving the same definition of a nuncupative will, proceeds to say, “ But as nuncupative wills and codicils (which were formerly more in use than at present, when writing is become more universal) are liable to great impositions and may occasion many perjuries, the statute of frauds, 29 Car. 2, c, 3, hath laid them under many restrictions.” The restrictions to which he alludes, are to be found in the 19th, 20th, 21st and 22d sections, and relate to the number of witnesses—to the kind of sickness, the place where and the circumstances under which, the will might be made—to the manner in which it should be proved, and to the *155period of time after the death of the testator, within which the substance of it should be reduced to writing, and render it valid. The statute had no application, however, to soldiers in service, or mariners at sea; for the 23d section provided, “ that any soldier being in actual military service; or any mariner or seaman being at sea, may dispose of his movables, wages, and personal estate, as he or they might have done before the making of this act.” Our statute “to reduce the laws concerning wills into one statute,” passed February 20th, 1801, (Kent & Radcliff’s Revision, vol. 1, p. 181, ch. 9, §§ 14 and 15,) copied substantially all the restrictions of the 29 Car. 2, upon the making of nuncupative wills ; and so did the act concerning wills, passed March 5th, 1813, Van Ness and Woodworth’s Revision, vol. 1. p. 387, chap. 23, sections 14 and 15,) and both contain the provision that soldiers in actual military service, and mariners, or seamen being at sea, might dispose of their personal estates in the same manner as if those acts had not been passed. The two statutes of this state, to which I have referred, have long since ceased to exist; and in their place, we have the act concerning wills and testaments of real and personal property, <and the proof of them. (2 R. 8. 56.) The 22d section is in these words : “No nuncupative 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.” In respect to all but these two classes, the right to transmit personal property by means of an unwritten mil was first greatly circumscribed, and then taken away altogether. The imminent dangers, the diseases, disasters, and sudden death, which constantly beset soldiers and sailors; the utter inability, oftentimes, to find the time or the means to make a deliberate and written testamentary disposition of their effects, seem, at all times, to have made them a proper exception to the operation of a rule, which the wisdom of later times, has found it expedient, if not absolutely obligatory, to apply to all others. The right however, of a soldier in actual military service or of a mariner at sea, to make an unwritten will, is not an unqualified right which may be exercised under all circumstances. As the making of such wills, can only *156be justified upon the plea of necessity, so they will only be tolerated when made in extremis.
[Kings General Term, October 6, 1851The testator William L. Hubbard was a mariner actually at sea. The will was made during his last illness, and within an hour of his death, and was sufficiently proved by the witnesses who were present, and has all the characteristics of a good nuncupative will. The decree made at the special term should be reversed and that of the surrogate affirmed, with the costs of the appeals to Maria J. Hubbard, the appellant.
Morse, Barculo and Brown, Justices.]