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Nuncupative wills in Mississippi

It’s to a different kind of will that The Legal Genealogist calls attention this morning: not the usual written form that we hope to see with our ancestors carefully setting out spouses and children and grandchildren and who is to receive what ouf ot the estate.

MS.nunNope, this is a different breed of will entirely, called a nuncupative will.

By definition, that’s “a will which depends merely upon oral evidence, having been declared or dictated by the testator in his last sickness before a sufficient number of witnesses, and afterwards reduced to writing.”1

You can think of it as a kind of a dying declaration — the words spoken by a person who realizes that he or she is dying, doesn’t yet have a written will, but wants to say what should be done with his or her property.

It’s not valid everywhere, and never has been: “Such wills are valid only in a few states and only in very limited and unusual circumstances. The idea is that if someone suddenly becomes ill or in extreme danger, and can’t make a written will, his or her last wishes will be honored.”2

In New York, for example, a nuncupative will today is valid only if it’s the will of “a member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged; a person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict; or a mariner while at sea.”3

The theory is that, today, there’s little reason why someone can’t get a will properly prepared. But that wasn’t always the case — and at times when many Americans weren’t literate, when lawyers and clerks were few and far between, and when formalities weren’t as likely to be followed, the law was more forgiving of nuncupative wills.

Case in point: the laws of early Mississippi — laws that The Legal Genealogist was poking around in last night in anticipation of this weekend’s visit to the Mississippi Genealogical Society in Pearl.4

From its earliest statutes, Mississippi recognized the nuncupative will, under very strict limits.

The statute provided in relevant part:

Sec. 18. No nuncupative will shall be established, unless it be made in the time of the last sickness of the deceased, at his or her habitation, or where he or she hath resided for ten days next preceding the time of his or her death, except where such person is taken sick from home, and dies before his or her return to such habitation ; nor where the value bequeathed exceeds one hundred dollars, unless it be proved by two witnesses, that the testator or testatrix called on some person present to take notice, or bear testimony, that such is his or her will, or words of the like import.

Sec 19. After six months have elapsed from the time of speaking the pretended testamentary words, no testimony shall be received to prove a nuncupative will, unless such words, or the substance thereof, shall have been reduced to writing, with in six days after speaking the same.

Sec. 20. No probate, of any nuncupative will shall be taken, or letters testamentary granted thereon, until after the expiration of fourteen days, from the time of the decease of the testator or testatrix, nor until the widow, if any, and next of kin, if resident in this state have been summoned to contest the same, if they think proper.5

So to be valid, this dying declaration had to be made during the deceased person’s last illness, at the person’s home unless the person was suddenly taken sick away from home. This limit was to ensure that people from distant areas couldn’t conspire to deprive the rightful heirs of their inheritances.

The amount of the estate couldn’t be more than $100 unless two witnesses were called in to hear the person’s dying declaration. No one witness was considered enough for a more valuable estate.

Nobody was allowed to come into court and testify about what the person had said in that dying declaration more than six months afterwards, unless the declaration was written down within six days after it was spoken. That, of course, was to limit the opportunity for mischief: “Yes, Daddy left all of his estate to me!” wasn’t going to fly once time had passed.

And nobody could rush into court with this oral declaratrion without giving notice to all the heirs, including the widow and next of kin, again to limit the chances of that “Daddy left all of his estate to me!” mischief.

And, by the way, Mississippi law today is very much in keeping with its counterpart of nearly 200 years ago: the Mississippi Code today provides basically the same thing (a nuncupative will is valid, under strict limits, with the same controls as were written into the law in the early 1800s).6

So don’t be surprised in a Mississippi probate case to find that a dying declaration served — and serves — the purpose of a will.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 835, “nuncupative will.”
  2. Is an Oral (Spoken but Not Written) Will Valid?,” AllLaw.com (http://www.alllaw.com/ : accessed 24 Jan 2016).
  3. New York Consolidated Laws, Estates, Powers & Trusts, §3-2.2.
  4. Come on out and join us! It’s going to be at the Clyde Muse Center, Hinds Community College, Rankin Campus, in Pearl, with doors opening at 8 a.m., this Saturday, January 31st.
  5. Chapter 9, The Revised Code of the Laws of Mississippi… 1823 (Natchez: Francis Baker, 1824), 33; digital images, Google Books (http://books.google.com : accessed 24 Jan 2016).
  6. Miss. Code Ann. § §§ 91-5-15 through 91-5-19.
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