The language of the law. Part Latin, part Greek, part law French, even part Anglo-Saxon. And all confusing.

The Legal Genealogist has been off gallivanting in England, and isn’t quite sure today what time zone it is, what day it is, or even what continent this is.

But the blog has been quiet long enough, so let’s do a quick alphabet soup, shall we?

We’re up to the letter N for 2019, so here’s a question for you.

Why do we call it a nuncupative will?

All of us as genealogists should know the term nuncupative will. It’s the kind of 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

Or, to put it more plainly: “An oral will, which is legal only in some states and in very unusual circumstances, such as when the person making the will faced imminent death.”2

As the definitions make clear, this isn’t now, and never has been, a valid type of will everywhere because there’s so much opportunity for mischief when the only evidence of what the now-deceased property owner wanted done with his or her property is the testimony of witnesses all claiming that “Daddy left it all to me.”

So nuncupative wills — even where they are valid — are often hedged in with a lot of restrictions. They almost always have to have been declared during the last illness of the person, with a specified number of witnesses (and often witnesses who aren’t personally benefiting), and then reduced to writing in a very short time period. In most cases, they’re only effective for personal property, not for land, and in some jurisdictions they’re only valid if made by a member of the military or a mariner — and then only if in actual service in combat or on the sea.3

Yeah, yeah, yeah.

But what makes it nuncupative?

It’s the legal Latin.

To nuncupate is to “declare publicly and solemnly.”4 That’s from the Latin nuncupare which, in the civil law, means to “name; to pronounce orally or in words without writing.”5

And nuncupare in turn is the “present active infinitive of nuncupo6 which, finally, is a verb meaning “I call by name; I name” or, in law, “I publically name or appoint as heir.”7

So there you have it. The “part Latin” part of “all confusing”… maybe now a little less confused.


Cite/link to this post: Judy G. Russell, “2019 alphabet soup: N is for…,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 13 June 2019).

SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 835, “nuncupative will.”
  2. Wex, Legal Information Institute, Cornell Law School (https://www.law.cornell.edu/wex : accessed 13 June 2019), “nuncupative will.”
  3. See generally “Nuncupative or Oral Wills,” Part III, chapter IV in Joseph Shouler, A Treatise on the Law of Wills, 2d ed. (Boston: Boston Book Co., 1892), 381-403; digital images, Google Books (https://books.google.com/ : accessed 13 June 2019).
  4. Black, A Dictionary of Law, 835, “nuncupate.”
  5. Ibid., “nuncupare.”
  6. Wiktionary (https://en.wiktionary.org/wiki/), “nuncupare,” rev. 25 May 2017.
  7. Ibid., “nuncupo,” rev. 25 May 2017.
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