Lewis v. Heirs of Aylott

Decision Date01 January 1876
Citation45 Tex. 190
CourtTexas Supreme Court


APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

The facts are given in the opinion.

Walker & Walker, for appellants.

This suit was instituted by the appellants to probate the nuncupative will of Aylott, deceased, devising to them three lots of ground in the city of Galveston. The defendants filed a demurrer to the petition, which was sustained on the ground that real estate could not thus be devised, but only by written will; and although the facts had been submitted to the jury under a denial of the facts alleged, who found in favor of the plaintiffs, the court, for the reason assigned above, refused to admit the will to probate, and adjudged the plaintiffs to pay the costs. The appellants assign as error the judgment of the court sustaining the demurrer, the refusal to probate the will, and the adjudication of the costs against the plaintiffs.

As to the first and main point: can real estate pass by nuncupative will? Appellants contend that at common law lands were devisable by will--the common law being the rule here of decision, and the statute regulating wills imposing no restriction other than as to the mode and manner and the circumstances under which nuncupative wills may be made, and making no discrimination as to amount or character of property devisable or the subject of bequest; that not only is there no limitation by the letter of the statute against the right thus to devise, but the construction by implication unfavorable to that right is admissible. “Lands would pass by will at common law.” (3 Lomax, 1, 2; 1 Blackst. Comm., 299,) [374.]

“After the Norman conquest lands held in socage could be devised, and all allodial grants, as well as particular customs in cities and boroughs; and even in feudal lands, the ancient custom obtained by indirection. (See Statute of Uses, 27 Hen. VIII; Sanders on Uses, 69; Statute of Wills, 32 Hen. VIII; 3 Wash. on Real Prop., 427; 8 Bacon's Abr., 441.)

Under this statute lands could be devised by unwritten will.” (Brown v. Sackville, Dyer, Croke Eliz.)

The statute of wills (29 Charles II, sec. 5) and the statute of frauds were adopted by all the States of the Union, more or less modified. (See 3 Shep. Touchstone.) Hence the current of decisions all tend to give validity to a nuncupative will only so far as personal property is disposed of.

It is frequently laid down, though inaccurately, as we think, that by the common law lands and tenements were not devisable by last will and testament. The feudal system innovated upon the old common law in that respect, and did establish the above rule, which grew up and arose out of the peculiar institutions consequent to that system and its reasons; yet, in certain boroughs and cities the old law to the contrary was preserved, and hence we observe the qualification in all the books to the above general rule, “except by particular custom.”

See 8 Bacon's Abr., title Wills and Testaments (D,) where in note (b) it is remarked that “the true reason seems to be from the nature of the feudal tenure, and the relation that was first established betwixt the lord and his tenant.” It is stated in 3 Lomax, 1, that it is generally agreed that the power of devising lands existed in the time of the Saxons; but upon the establishment of the Normans it was taken away because it was inconsistent with the feudal law.” “In some cities and boroughs lands may pass as chattels by will nuncupative or parol, without writing.” (See note, (a) 8 Bacon's Abr., title Wills, &c., (D,) citing 1 Ins., 111; Perk., sec. 476; Wood, part 1, 487.)

In the early ages, when reading and writing were confined to a very few, wills were generally verbal, it would seem, from the necessity of the case; and even as late as 32 Hen. VIII, when was enacted the statute of wills, lands and manors, it was thereby provided, were devisable, “in writing or otherwise,” (8 Bacon's Abr., Wills, &c. (D;) and see note, (a,) showing that the writing by testator was held not essential, but the will, supported by memoranda taken of his intentions, without the testator having ever seen the same--a proceeding quite similar to the requirement now of reducing to writing after death the verbal declarations--the analogy is referred to, to exhibit the fact that at that day even lands were devisable without writing, and, too, under a statute which attempted to advance in the direction of the subsequent legislation making the written will signed by the testator indispensable to pass lands.

Whatever force may be assigned to the system of English laws regulating the subject of the devise of real estate as applicable in the United States, it must be borne in mind that Texas tenures are allodial, and originated under the civil law, in which the feudal system and its artificial reasons never had a place, and that although the common law was adopted as a rule of decision, none of the English statutes nor the rules of decisions founded on them were adopted. (See 31 Tex.)

This doctrine of nuncupative wills is derived from the civil law, and is of very ancient date. (Cowp., 90.) It was incorporated into the system of the common law, and acted upon proprio vigore long before the statute of frauds and the statute of wills. (Prince v. Hazleton, 20 Johns., 519.) And by the civil law nuncupative wills were not restricted in their effects as to the kind of property on which they might operate. A testator by nuncupative will could dispose of all his effects. (Ibid., p. 519.) All the English statutes, as of wills and of frauds, “were intended as remedies for the frauds and impositions which grew out of the common law. The various regulations introduced were for the express purpose of serving as checks and barriers against fraud. The statute does not purport to be declaratory of the common law, but is a remedial statute.” (Prince v. Hazleton, 20 Johns., 502.)

Section 1 of our statute of wills (Paschal's Dig., art. 5361) provides the mode and manner of devising or bequeathing all manner of property by written will. Section 6 of the same requires nuncupative wills (and thereby recognizes them) to be made under the circumstances and in the mode therein named. In one case named in the section referred to, the nuncupative will is restricted to $30; in all other cases, wholly unlimited. Now, unless under the common law the term “nuncupative” will restrains the grant or gift to personal property, it would seem that our statute has simply put such wills on the same footing as written wills, subject to the conditions specified. The authorities cited, and the history of wills at common law, seem to show that in so far as the term “nuncupative” is concerned, derived as it was from the civil law, where it was used to convey all of a man's effects, that it did not import a restriction on its power to pass real estate, but its peculiarities related rather to the circumstances under which it was brought into requisition. It seems to have been restricted as to the subjects of its operation by statute, both in England and the States of the Union, and not by the common law. These restrictions are traced back by statute to a very remote antiquity, yet not so far into the past but that we discover when there were none at common law; and also when, under the statute of wills, (32 Hen. VIII,) lands passed under the construction given to that statute, by forms and proceedings varying but little from the nuncupative will, as contemplated by our own statute.

The frauds and impositions practiced under a system affording such temptations were, at an early day, cut off by limitations of the amount of bequests of personal property to a very inconsiderable sum, and forbidding devises thus of real estate entirely, both in England and America. In America, at least, in some of the newly-settled western and southern States, the value of real estate did not present a peculiar ground of jealousy, if we may judge from the early legislation of Ohio and Texas. In Texas, when the law was enacted, January, 1840, if a testator had been restricted from giving his lands by nuncupative will--the property then of least value to himself or others--a species of property then proverbially cheap, unmarketable, and valueless,--and were permitted to give in that mode ad libitum his money and personal property of all kinds without limitation as to amount, surely such legislation would be suggestive of the play of Hamlet with Hamlet's part omitted. To suppose that lands were not embraced by the intention of the Legislature is to rest the matter on reasons technical and artificial, and which must have been foreign to the legislative will, and wholly inconsistent with the condition of the people for whose benefit the law was enacted. The act in question showed no invidious or jealous discrimination whatever against wills of that kind, for it will not be pretended but that, even now, a nuncupative will may pass personal property to the amount of millions, as well as for the most insignificant sum.

In Ohio, the state of legislation has been the same as in Texas. Possibly in no other State has this concurrence on this subject existed, owing to the almost universal statutory restrictions as to kind of property and amount. It was held, in Ohio, under their statute of 1824, that a nuncupative will did pass real estate. The statute referred to, so far as its bearing on the case now before this court is concerned, is identically the same. 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, &c., shall have power, by last will and testament, in writing, to dispose of both real and personal estate. If personal property were not here...

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    • United States
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