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efficacious phrase from the opinion of the United States Supreme
Court in Kronprinzessin Cecille, 30 that "business contracts must be
construed with business sense, as they naturally would be understood
by intelligent men of affairs."
E. G. H.
Informal Wills of Soldiers and Mariners*. — Duke et
decorum est pro patria mori. 1 This ancient proverb doubtless has
been a source of comfort and satisfaction to countless hosts of
soldiers for many centuries. Since it has been felt, however, that
death for one's country cannot be a source of unalloyed pleasure to
the deceased, soldiers of many nations 2 have ever been the objects
of peculiar indulgence in a number of ways — perhaps in no other
so notably as in the matter of making their wills. Two thousand
years ago Julius Caesar first freed his milites from the necessity of
observing the strict forms of the Roman law of testaments. 3 And
from early days the English and American people in their statutes
have extended to the defenders of the nation on land and sea similar
testamentary privileges with respect to their personal property.
Various reasons for the granting of this privilege have been
suggested. In one of his military orders, the Emperor Trajan
declared : "I have decided that the inexperience of my most excellent
and faithful fellow-soldiers should be indulged so that, no matter
how thy have executed their wills, their wishes should be respected." 4
It has been said to be a special immunity "for honourable service
and perilous exertion" by the "gallant but unlettered and endangered
soldier." 5 This is only one of many special favors extended to
their soldiers and sailors by the Romans. They were moved, no
doubt, not only by a sense of gratitude, but also by the fact that the
average soldier or sailor was necessarily unskilled in the mysteries
of the law and during his term of service was generally unable to
obtain expert advice (inops consilii) 6 .
*This note was prepared after a study of the learned and thorough opin-
ion of Gest, J., in Henninger's Estate, 30 Pa. Dist. Ct 413 (1921).
1 Horace, Odes and Epodes, Bk. Ill, Ode II.
2 Only the testamentary privileges granted by the Roman Law and the
Common and Statute Laws will be considered here. For a list of the
authorities of European countries under the Civil law, see Drummond v.
Parish, 3 Curt. 522 (Eng. 1843).
"Hunter, Roman Law, 3 ed. p. 771 (1897); Drummond v. Parish, supra.
4 See Henninger's Estate, 30 Pa. Dist. Ct. 413 (1921).
"Browne, Civil Law, 2 ed., p. 291 (1802).
•Ayliffe, Pandect of Roman Civil Law, Book III, Tit. XIV; In the
Goods of Sarah Hale, Ir. R. 2 K. B. (191S) 362; Smith's Will, 6 Phila. 104
2i 4 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
At early common law a valid written or oral (nuncupative) 7
will of chattels could be made by any male person at least fourteen
years of age. 8 No special privilege was granted to any particular
class since no strict testamentary form was required of any person. 9
Any words, written or oral, were sufficient, just as long as the act
of writing or speaking and the testamentary intent of the deceased
were clearly proved. Two witnesses were required for an oral
will 10 and none for a written will. 11 It is uncertain whether at
early common law it was necessary for the validity of a nuncupative
will that it be made during the last illness in the face of death (in
extremis). 12 Subsequently this probably was not a requirement, 18
but as education 14 began to spread among the people, the great
necessity for their toleration ceased, and it seems clear that they
were so limited in actual practice. 15
Loose nuncupative wills are necessarily a source of some dan-
ger. After one particularly flagrant attempt had been made to have
such a will established by gross fraud and perjury, 18 the English
legislature felt compelled to take action, and the Statute of Frauds 1T
was passed. By this act nuncupative wills of personalty were still
permitted, but only when hedged about with strict formalities ; then
'"And a testament nuncupative is . . . when the testator lieth
languishing for fear of sudden death, dareth not to stay the writing of his
testament; and therefore he prayeth his curate, and others his neighbors,
to bear witness of his last will, and declareth by word what his last will is" :
Perkins, Conveyancing, 14 ed., 209 (i757')-
"Williams, Executors, n ed., Pt. 1, Bk. 2, c. I, sec. 1 (1921) ; Deane v.
Littlefield, 1 Pick. 239 (Mass. 1822) ; Smallwood v. Berthouse, 2 Show. 204
(34 Car. 2).
* Henninger's Estate, supra.
10 Henninger's Estate, supra.
"Swinburne, Wills, 7 ed., Pt 1, sec 10 (1793).
"Schouler, Wills, Executors and Administrators, 5 ed., Vol. 1, sec. 361
"See Johnston et al. v. Glasscock, 2 Ala. 218 (1841), at p. 239, et seq.
""This Kind of Testament [nuncupative] is commonly made when the
Testator is very sick, weak, and past all Hope of Recovery. For it is re-
ceived for an Opinion amongst the ruder and more ignorant People, that if
a Man should be so wise as to make his Will in his Health, when he is strong
and of good Memory, having Time and Leisure and might ask Counsel of
the Learned, that then surely he should not live long after. And there-
fore, they defer it till such Time, when it were more convenient to apply
themselves to the Disposing of their Souls, than of their Lands and Goods.
And in Consideration hereof it is, that Testaments are so much favored
which be made in such Times, namely, for that the Testator then cannot
conveniently stay to ask Counsel of such Points as be doubtful in Law":
Swinburne, Wills, supra, Pt. 1, sec. 12.
"Prince v. Hazelton, 20 Johns. 503, 511 (N. Y. 1822).
"Cole v. Mordaunt, 4 Ves. 196, note (1676).
"29 Car. II c. 3, sec. 19-22.
came the Wills Act of I Victoria, 18 providing that all wills must be
in writing and that every testator must be at least twenty-one years
of age. 19 As we shall see, however, important reservations were
made to apply to soldiers and sailors, both in the English and the
Pennsylvania Wills Acts. All of our Pennsylvania statutes 20 on
the subject permit nuncupative wills of personalty if executed with
The exemption in favor of soldiers and sailors in the Statute
of Frauds is as follows:
"Sec. 23. — Provided always that, notwithstanding this act, any
soldier being in actual military service, or any mariner or seaman
being at sea, may dispose of his moveables, wages, 21 and personal
estate as he or they might have done before the making of this
The Act of I Victoria, and the Pennsylvania Wills Acts of 1705,
1833 and 191 7 contain like provisions in almost identical words. A
number of the other States have closely similar enactments. 22 The
Wills (Soldiers and Sailors) Act 23 extends the privileges of mem-
bers of the navy and the marines in England, and declares that
members of the Air Force are included in the word "soldier." In
addition it provides that a devise of real estate shall be "valid in any
case where the person making the disposition was of such age and
the disposition has been made in such manner and form that if the
disposition had been a disposition of personal estate made by such
person ... it would have been valid." 2 * This is an excep-
tionally generous provision. The other statutes exempted soldiers
and mariners from restrictions which were being placed upon all
other persons 25 — this statute creates for them, even though they be
infants, the rare privilege of making a valid oral devise of real
estate. 2 " 3
16 (1837) C. 26.
"Sections 9 and 7.
"The Wills Act of 1705 (1 Sin. Laws 33); of 1833 (P. L. 249); and
of 1917 (P. L. 403) ; the Act of March 15, 1832 (P. L. 135).
31 In England there now are special acts providing for the disposition by
His Majesty's seamen and marines of their wages and effects. They are
not dealt with in this note. See Williams, Executors, 11 ed., Pt. 1, Bk. 4, c. 3
33 1 Stimson, Am. Stat Law, Sec. 2700.
33 (1918) C. 58.
34 Sec. 3. See In the Estate of Yates  P. 93 (Eng.).
35 It is pointed out by Gest, J., in Henninger's Estate, supra, that the
English soldiers and mariners were permitted to retain a privilege, while
the Roman soldiers had one created for them.
35a Though not yet construed by a court with respect to infants, it seems
impossible of any other interpretation.
216 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
The courts almost universally have been liberal in their in-
terpretation of the exempting sections of the various statutes. At-
tempts have been made to have these sections construed as re-
ferring only to the manner of executing a will and, therefore, as
not exempting infant soldiers, and as not applying to revocations.
The attempts have met with failure in the stronger cases. 26 The
result is that the status of the modern soldier and mariner in most
jurisdictions is almost identical with that of all persons before the
passage of the Statute of Frauds; with respect to both manner of
executing a will of personalty, and testamentary capacity. 27 Sev-
eral restrictions, however, should be noted. They relate to revo-
cation by subsequent marriage 28 and power to appoint a guardian. 29
In the English statutes the exemption is in favor of "any sol-
dier being in actual military service, or any mariner or seaman
being at sea"; the Pennsylvania Acts make provision for "any
mariner being at sea, or any soldier being in actual military serv-
ice." 30 The enactments in most of the other states use closely
similar language. 31 "Mariner" and "seaman" include not only mem-
bers of the government's naval forces, 32 but also those of the mer-
chant fleets. 33 Similarly, "soldier" is meant to apply to the military
forces of the East India Company Si as well as to the regular army. 35
The privilege belongs to all, irrespective of rank. 36 It also appears
26 In the Estate of Gossage  P. 194 (Eng.) ; Henninger's Estate,
supra. Contra: a dictum in In re Wernher, L R. 1 Ch. Div. (1918) 339;
Goodell v. Pike, 40 Vt. 319 (1867). The fraud involved seems to have in-
fluenced the court strongly in the latter case. The Wills (Soldiers and
Sailors) Act of 1918 definitely establishes the privilege of English infant
soldiers and mariners.
21 Henninger's Estate, supra.
28 Sec. 18 of the Act of I Victoria, providing that a subsequent mar-
riage shall revoke a will, has been held to apply to soldiers and mariners:
In the Estate of Wardrop,  P. 54 (Eng.).
29 In the Estate of Tollemache  P. 246 (Eng.). The Wills (Sol-
diers and Sailors) Act of 1918, sec. 4, has since changed the law.
"The language of the Act of 1705, supra, is slightly different, being
'or any mariner or person being at sea" (Sec. 7).
81 See 1 Stimson, Am. Stat. Law, supra.
32 In the Goods of Hayes, 2 Curt. 338 (Eng. 1839).
38 In the Goods of Paterson, 79 L. T. R. 123 (1898) ; Ex parte Thomp-
son, 4 Bradf. 154 (N. Y. 1856) ; Hubbard v. Hubbard, 8 N. Y. 196 (1853).
84 Gunner: In the Goods of Prendergast, 5 N. of Cas. 92 (Eng 1846)
Surgeon: In the Goods of Donaldson, 2 Curt. 386 (1840). "*
, J!/ w Xf St S. bIe [I9I9 1 R 7 < En S-) : Leathers v. Greenacre, 53 Me. 561
(1866); Van Deuzer v. Gordon, 39 Vt. in (1866); Botsford v Krake t
Abb PR. (N S.) 112 (N. Y. 1866) ; Anderson v. Pryor, 10 Smed & M
620 (Miss. 1848).
x Mariner: In the Goods of M'Murdo, L. R. 1865, P. & D 540 Cook-
Ex parte Thompson, supra. Master: In the Goods of Paterson supra
Female typist on the Lusitama: In the Goods of Sarah Hale, supra ' Purser-
that one is none the less a mariner or seaman or soldier because she
happens to be a woman. 37 Nor is it necessary that the deceased
had attained his majority; it is sufficient if he was at least fourteen
years of age. 88 It is evident that this testamentary privilege is today
not dependent upon lack of sufficient education to execute a formal
instrument. 3 *
The rule is for able-bodied, as well as for wounded and dying
soldiers 40 — indeed, in the great majority of the cases the soldier was
not even in the midst of immediate peril when he expressed his tes-
tamentary wishes. 41 The problem with which the courts have had
the greatest difficulty is to determine just when one may be said
to be "in actual military service" or "at sea." The answer has been
clear when the soldier was actually on the field of battle, 42 or en-
gaged in active operations 43 or in winter quarters 44 or in a hospital
in the war area. 45 On the other hand, while in barracks at home 46
In the goods of Hayes, supra. Surgeon: In the goods of Saunders, L. R.
1865, P. & D. 15. Naval Lieutenant: In the Estate of Yates, supra. Admiral:
In the Goods of Austen, 2 Rob. Ecc. 611 (1853). Private: In re Stable,
supra; Leathers v. Greenacre, supra. Cornet: In the Goods of Farquhar,
4 N. of Cas. 651 (Eng. 1846). Captain: In the Goods of Godley, 41 Ir. L. T.
160 (1907). Major General: In the Goods of Churchill, 4 N. of Cas. 47
(Eng. 1845). Nurse: In the Estate of Ada Stanley,  P. 192 (Eng.).
"As, in the army, the term 'soldier' embraces every grade, from the private
to the highest officer ... so in the marine, the term 'mariner' applies to
every person in the naval or mercantile service. . . ." Ex parte Thompson,
"In the Estate of Ada Stanley, supra; In the Goods of Sarah Hale,
38 Henninger's Estate, supra; In re Stable,, supra; In the Goods of His-
cock,  P. 78 (Eng.) ; In the Goods of M'Murdo, supra; In the Goods
of Farquhar, supra. For the cases contra, see note 26.
"In the Goods of May, 86 L. T. R. 120 (1901).
"Van Deuzer v. Gordon, supra. There is a dictum in the case of Ray
v. Wiley, n Okl. 720 (1902), to the effect that the will must be made while
the testator is in extremis or in actual fear, contemplation or peril of
"See, among others, In the Estate of Yates, supra, and In re Stable,
42 Henninger's Estate, supra; In the Goods of Churchill, supra.
a la the Estate of Gossage,  P. 194 (Eng.); In re Limond, L. R.
2 C. D. (1915) 240; Van Deuzer v. Gordon, supra; Botsford v. Krake,
supra; Anderson v. Pryor, supra.
44 Leathers v. Greenacre, supra.
"Gould v. Saffbrd's Estate, 39 Vt. 498 (1866). A letter written by a
soldier in a German prison camp was held not entitled to probate only
because the gifts of personal estate were dependent upon those of real
estate: Godman v. Godman, W. N. (1919) 176 (affirmed in  P 193).
This case was decided under the Act of 1 Victoria.
*Drummond v. Parish, supra. The privilege of making informal wills
was granted by Julius Caesar first to all the Roman soldiers, and later to
sailors ; but it was gradually restricted until finally only those expeditionibus
occupati were thus privileged.
218 UNIVERSITY OF PENNSYLVANIA LAW REVIEW
or abroad " he is not "in actual military service," nor, a fortiori, is
one who is at home on a furlough and not under orders to report
shortly, 48 nor one who is about to leave home to become a volun-
teer. 48 One who is under orders to join a force about to enter into
active operations, must take some "step" 50 toward obeying the orders
before he can become a privileged soldier — just how great a step
is by no means clear. 61 It seems imperative that a war be either in
progress 52 or threatened. 53
In construing the phrase, "at sea," extreme liberality has been
shown. 54 Wherever the tide ebbs and flows is said to be a part of
the sea; 55 and a mariner is at sea while on a voyage though his
ship is at anchor in a harbor, 56 or while it is lying close to shore
awaiting a fair wind 57 or is in port making preparation to sail. 58
Perhaps the greatest indulgence has been shown where the testa-
mentary privilege of those "at sea" was granted to mariners during
furloughs on shore. 59
" In the Goods of Hill, i Rob. Ecc. 276 (Eng. 1845) ; White v. Repton,
3 Curt. 819 (Eng. 1844). See also In the Goods of Phipps, 2 Curt. 368 (Eng.
° Smith's Will, supra. "It ['actual military service'] . . . never can
apply to the soldier who is in regular quarters or at his customary home on
leave of absence" (p. 107). But see Herbert v. Herbert, Dea & Sw. 10
" Pierce v. Pierce, 46 Ind. 86 (1874).
"This is the test laid down in In the Goods of Hiscock, supra. The
court in Gattward v. Knee, , P. 99 (Eng.) believes mobilization must
have begun. ". . . the commencement of the military service is the time
when the mobilization takes place. In the same way it seems to me that
the actual military service does not cease until the full conclusion of the
operations" : In re Iimond, supra, at p. 246.
51 Compare In re Stable, supra, and In the Goods of Gordon, 21 T. L. R
653 (1905), with In the Goods of Anderson  P. 49 (Eng.).
""In the Goods of Hiscock, supra.
" Though the statutes do not so limit the privilege, it seems significant
that apparently no soldiers' wills have been offered for probate except where
such was the state of affairs.
""The courts in England have gone to the uttermost verge of con-
struction in extending this exception in behalf of seamen" : Hubbard v Hub-
bard, 8 N. Y. 196, 200 (1853). The Wills (Soldiers and Sailors) Act of
1918 attempts to clarify the meaning of the phrase.
55 Hubbard v. Hubbard, supra. On the high seas ; Morrell v. Morrell 1
Hagg. Ecc. 51 (1827). On a Chinese river: In the Goods of Austen, supra
A mariner on a gunboat on the Mississippi River during an attack upon
Vicksburg was not "at sea": The Will of Gwin, Tuck. 44 (N. Y. 1865).
°*In the Goods of Thompson, 5 Notes of Cas. 596 (1847).
"In re Milligan, 2 Rob. Ecc. 108 (Eng. 1849).
t t t I V he J Goo 2 s ll < 2L Pat J erson ' supra ' Ex f arte Thompson, supra. But see
In the Goods of M'Murdo, supra.
t i"' ? w re |f ave: . In the Goods of Lay, 2 Curt. 375 (Eng. 1840). On
furlough but under orders to report shortly: In the Goods of Sarah Hale,
Before even a soldier's or a mariner's will may be admitted
to probate, the testamentary act and intent must, of course, be
satisfactorily proved. The deceased, however, need only have in-
tended to express his wishes in reference to the disposition of his
property after death. 60 It is of no consequence that he declared
his intention to draw a will subsequently. 81 The medium of the oral
or written expression is immaterial. 62 As is obvious from the ad-
mission of letters to probate, the writing need not be attested.
In an hour when the cry is being raised that the nation is for-
getful of its soldiers and sailors and unappreciative of their serv-
ices, it is of interest to note the peculiar indulgence with which the
law has treated them for centuries with respect to one of the most
sacred of human rights. The privilege which Julius Caesar created
for his Legions twenty centuries ago is ours today.
C. Z. G., Jr.
Implied Warranty of Quality 1 in Sales of Food. — "No man
can justify selling corrupt victual, but an action on the case lies
against the seller, whether the victual was warranted to be good or
not." 1 This statement by Frowicke was relied upon by Blackstone
as authority for the rule that "in contracts for provisions it is
supra. But in In the Estate of Thomas, In the Estate of Bowly, 62 Sol. J.
784 (1918), the court took a strict attitude, refusing to allow to probate the
informal wills of two naval officers who were, respectively, lying wounded
in a hospital and on furlough in London in order to be married. The decision
of the Hale case was criticized. It was pointed out that Bowly's furlough
was "not in the course of any voyage" and "no portion of his duties of the sea"
(p. 784). Valid will of a wounded naval officer returning on a merchant
ship from active service : In the Goods of Saunders, supra. But a captain of a
merchant ship is not "at sea" while a passenger on another merchant ship;
the mariner must be employed as such at sea: Warren v. Harding, 2 R. I.
'"Rice v. Freeland, 109 S. E. 186 (Va. 1921) ; In re Stable, supra.
** Gattward v. Knee (1902) P. 99 (Eng.) ; In the Goods of May, 86
L. T. R. 120 (1901). He need not have intended the letter to constitute a
will: Rice v. Freeland, supra. But see the criticism of this case in the Vir-
ginia Law Review (February, 1922), p. 310.
" Oral wills: Henninger's Estate, supra; In re Stable, supra; Ex parte
Thompson, supra. Unattested written wills: In the Goods of Lay, supra.
Attested by one person: In the Goods of Farquhar, supra. Letters: Rice v.
Freeland, supra; In the Estate of Ada Stanley, supra; Leathers v. Green-
acre, supra. Memorandum made at deceased's direction: Gould v. Safford's
Estate, supra. Entries in abstract book: In the Goods of Thompson, 5 Notes
of Cas. 596 (1847). Declaration made in compliance with military orders:
In the Goods of Scott,  P. 243 (Eng.) Interrogatory: Hubbard v.
Hubbard, supra. In one case there was admitted to probate a paper not
written in the deceased's hand, without any signature (simply a mark not
stated to be that of the deceased) and with no available witesses to prove
its validity: In the Goods of Prendergast, 5 Notes of Cas. 92 (Eng. 1846).