Have you heard of the term “nuncupative will” and wondered what one would look like? If you have never come across this term, here’s your chance to learn something new. Our research often throws us curves in the form of new types of documents. If we’re going to become excellent genealogists, we need to become familiar with a variety of terms and records. I’d read and taught about nuncupative wills but never discovered one in my research until recently.
The Nuncupative Will of William Miler
Doing some basic probate research on the Miller family of Lincoln County, Kentucky, I came across the fascinating 1796 nuncupative will of William Miller. (1)
The will reads:
The noncupative [sic] will of William Miller deceased, which he repeated in presence of us on the twenty first day of November one thousand seven hundred & ninety six in his last illness at his own house in Lincoln County being in perfect mind & memory is as follows. It appears that Mary Rock and Michel Ozwell will make oath to the words as follows that about 15 minutes before William Miller died that he told his Negro man Peter that he had always been a good true Slave to him and not to be Deceitful to him and for to stick by him till he was buried and that he had not nary a child in the world and when he was buried that he was a free man and that he would give him his brown horse and saddle & bridle 7 all his close [clothes].
Michael [his mark] Ozwell
Mary [her mark] Rock
N.B These witness [sic] send this writing before me and Thomas Ball on the 24th Nov. 96
At a County Court held for Lincoln County the 2nd day of December 1796: This Instrument of writing was proved to be the Noncupative [sic] Will of William Miller Decd by the oath of Michael Ozwell & Mary Rock who upon their oaths do say that the said William Miller in his last illness at his own house did declare the same to be his will and desire which was committed to writing within 6 days whereupon the same is ordered to be recorded.
I was touched by William Miller’s freeing of his slave, Peter. By transcribing this will, I hope that Peter’s descendants may one day find him in this record and further their ancestry.
Definition of a Nuncupative Will
By definition, a nuncupative will is an oral will, witnessed by two or more persons. It is usually only valid if given in a moment of danger of imminent death such as an individual overtaken with a sudden illness or sailors or soldiers in combat. To be valid it must be written within a certain time period, generally six to twelve days.
Does the will of William Miller fit the above criteria?
– Witnessed by two or more persons: Yes, Michael Ozwell and Mary Rock witnessed the nuncupative will.
-Given in a moment of imminent death: Yes, the phrase “in his last illness” gives us the clue that William is about to die.
-Written within a certain time period: Yes, the nuncupative will was orally given on 21 November 1796 and the two witnesses appeared in court on 24 November 1796 to have it formally recorded. Notice that both signed with their mark, so it would have probably have been recorded by the county clerk, noted here as N.B. At the next county court on 2 December 1796, the written nuncupative will was proven valid because it had been “committed to writing within 6 days.”
It’s one thing to learn about a record type, but seeing the real thing is much more fun and educational.
What is a good resource to have on your bookshelf for these instances when something new pops up in your research? If you are researching in the United States, I highly recommend Val Greenwood’s The Researcher’s Guide to American Genealogy. (2) I own the third edition which doesn’t include the new sections on technology and DNA, but what it does contain is in depth information on the basic record types. I pull this book off my shelf regularly to check terms such as “nuncupative wills!”
Next time you run into something you don’t understand, take the time to stop and learn about the source. You won’t be disappointed.
Interested in learning more about probate? Here are past blog posts:
Best of luck in your genealogical journey!
- Lincoln County, Will Book No. 1, p.168-9, entry for will of William Miller, 1796; image 216, FamilySearch (https://www.familysearch.org ; accessed 15 August 2018), FHL microfilm 192,227.
- Val D. Greenwood, The Researcher’s Guide to American Genealogy, 4th edition, (Baltimore : Genealogical Publishing Company, 2017).
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