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NOTES 213 

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 
(Pa. 1865). 


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. 

NOTES 215 

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 
certain formalities. 

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 [1919] 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. 


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 [1921] 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, [1917] P. 54 (Eng.). 

29 In the Estate of Tollemache [1917] 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- 

NOTES 217 

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, [1916] 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, [1901] 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, [1921] 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 [1920] 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. 


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, [1902], 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 [1916] 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, 

NOTES 219 

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. 
133 (18S2). 

'"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, [1903] 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). 

"Keilway. 91.