LAST SICKNESS - The Law Mind Legal Dictionary

LAST SICKNESSAuthored

The Law Mind • 878 words

Definition

The last sickness is the illness or medical condition of which a person ultimately dies. It is the terminal episode of disease or physical decline that ends in the decedent's death. The phrase appears most often in two legal contexts:

1. Wills and testamentary law: Certain formalities — particularly those governing nuncupative (oral) wills — require that the testator make the will during the last sickness. The condition serves as a threshold requirement, limiting oral wills to circumstances where death is imminent and a written instrument is impracticable.

2. Creditor priority and estate administration: Expenses incurred during the last sickness are frequently granted preferred or priority status in the distribution of an insolvent decedent's estate. Medical care, nursing, and related costs arising from the terminal illness are paid ahead of ordinary unsecured debts.

The term does not have a fixed clinical definition. Whether a particular illness qualifies as the "last sickness" is a question of fact, determined by whether the illness was continuous and terminated in death, rather than by its duration or the nature of the disease.

Common Confusion

"Last sickness" should not be confused with the decedent's general medical history or any earlier illness that the person recovered from. Courts have generally held that a prior illness — even a serious one — is not the "last sickness" if the person recovered and died later of a separate or renewed condition. The continuity between the illness and the death is the operative link. A person may also suffer a long chronic condition; whether the entire chronic episode or only its final acute phase constitutes the "last sickness" has produced some variation in application.

Why It Matters in Research

Researchers encounter this term in two distinct streams of legal material, and conflating them produces confusion.

In probate and wills research, last sickness is a gatekeeping concept for nuncupative wills. Statutes of frauds in many American jurisdictions historically permitted oral wills only when made during the testator's last sickness — typically understood as the illness immediately preceding and causing death. Sources from the eighteenth and nineteenth centuries will reference this requirement extensively. Modern researchers should be aware that most U.S. jurisdictions have either abolished nuncupative wills entirely or sharply restricted them (often to military personnel), so the historical corpus on this point is far richer than current practice would suggest.

In estate administration research, the priority given to last-sickness expenses reflects a longstanding equitable preference for those who provided care and services to the dying person. Civil law jurisdictions — Louisiana in particular — codified this preference explicitly. Researchers working with nineteenth-century insolvent estate records, particularly from Louisiana or jurisdictions with civil law influence, will find last-sickness expenses listed as a distinct and senior claim category.

The phrase itself has largely disappeared from modern statutes, replaced by more clinical language ("expenses of last illness," "terminal medical expenses") in contemporary probate codes and creditor priority schedules. When reading older reports and digests, researchers should recognize that "last sickness" is the period term for what modern law addresses under medical-expense priority or deathbed-will formality requirements.

Historical Dictionary Support

Black's Law Dictionary states the definition sparingly: "That illness of which a person dies is so called." This is accurate but provides no navigational guidance for the two separate legal contexts in which the phrase operates.

Bouvier's is more instructive on both dimensions. On estate priority, Bouvier cites the Louisiana Civil Code (art. 3166) as an example of positive law recognizing the preference for last-sickness expenses among creditor claims. The associated list of preferred debts — servants' wages, retail provisions, clerk salaries, dotal rights — situates last-sickness expenses within the broader civil law hierarchy of privileged claims, useful context for researchers working with Louisiana succession materials. On testamentary law, Bouvier connects the phrase to the Statute of Frauds requirements for nuncupative wills, citing Roberts on Frauds and an early New York case (20 Johns. 502), and defines the requirement as a safeguard against imposition on the dying.

Neither dictionary addresses the interpretive question of what exactly constitutes the "last" sickness when a decedent suffered multiple or overlapping conditions — a gap that is significant for researchers because courts in the nineteenth century did grapple with this, particularly in nuncupative will contests.

Jurisdictional Note

Louisiana's civil law tradition gave explicit statutory recognition to last-sickness expenses as a privileged debt, making the Louisiana corpus particularly rich on this point. Common law jurisdictions varied considerably in how they ranked such expenses in insolvent estates, and some simply treated them as ordinary claims absent specific statutory language. For nuncupative wills, state-by-state variation was substantial throughout the nineteenth century, and researchers must consult the specific jurisdiction's statute of frauds or wills act for the precise formulation of the "last sickness" requirement.

Encyclopedia Cross-Reference

None of the available Law Mind Encyclopedia entries address the testamentary or estate-administration dimensions of last sickness directly. The matched entries (tax exclusions for sickness compensation and last-resort immigration relief) are not materially relevant to legal research on this term.

LAST SICKNESSmain

Black's Law Dictionary • 1891

That illness of which a person dies is so called.

LAST SICKNESSmain

Bouvier's Law Dictionary • 1928

That of which a person dies. The expenses of this sickness are gener- ally entitled to a preference in payment of debts of an insolvent estate; La. Civ. Code, art. 3166. To prevent impositions, the statute of frauds requires that nuncupative wills shall be made during the testator's last sickness. Roberts, Frauds 556; 20 Johns. 502. LAST WILL (Lat. ultima voluntas). A disposition of real estate to take effect after death. Generally speaking, last will means the one latest in date, though there may be two or more wills, all speaking from the death of the testator; 35 L. J. Ch. 389; L. R. 1 Eq. 510; 55 Bea. 321. The phrase "This is my last will, and testament" does not, of itself, revoke a former will; 9 Moo. P. C. 131; but may be confirmatory proof of an intention to revoke; 16 Bea. 173; 22 L. J. Ch. 185; 1 W. R. 3. "My last will dated," etc., giving the date of the first will, was held to mean the last will in fact, the date given been rejected as a mistake; 46 L. J. P. D. & A. 30; 2 P. D. 111; 37 L. J. P. & M. 72, n. It is strictly distinguishable from testa- ment, which is applied to personal estate; 1 Wms. Exec., 7th Am. ed. *4, n.; but the words are generally used together, "last will and testament," in a will, whether real or personal estate is to be disposed of. See WILL.

LAST SICKNESSmain

Bouvier's Law Dictionary • 1928

The wages of servants for the year past, and so much as is due for the current year. Supplies of provisions made to the debtor or his family during the last six months by retail dealers, such as bakers, butchers, grocers, and during the last year by keepers of boarding-houses and taverns. The salaries of clerks, sec- retaries, and other persons of that kind. Dotal rights due to wives by their hus- bands. The debts which are privileged on partic- ular movables are the debt of a workman or artisan, for the price of his labor, on the movable which he has repaired or made, if the thing continues still in his possession ; that debt on the pledge which is in the creditor's possession; the carrier's charges and accessory expenses on the thing carried; the price due on morable effects, if they are vet in the possession of the pur- chaser; and the like. See LIEN. As to privileges on movables, see a good summary in 1 Stims. Am. Stat. L. § 4662, and compare with the texts. Creditors who have a privilege on move- ables in Louisiana are (1) vendors for purchase money. (2) architects, mechan- ics, contractors, etc., for construction, re- building and repair of houses, etc., (3) material men, (4) those who have worked by the job in the manner required by law or police regulation on levees, bridges, ditches, and roads of a proprietor; Code §§ 3349-51. In regard to privilege, Domat says, "We do not reckon in the number of privileges the preference which the creditor has on the moveables that have been given him in a pawn, and which are in his custody. The privilege of a creditor is the distin- guishing right which the nature of his credit gives him, and which makes him to ba preferred before other creditors, even those who are prior in time, and who have mortgages." Domat, pt. 1, lib. iii. tit. i. sec. v. These privileges were of two kinds: one gave a preference on all the goods, with- out any particular assignment on any one thing; the other secures to the creditors their security on certain things, and not on the other goods. Among creditors who are privileged, there is no priority of time, but each one is in the order of his privilege, and all cred- itors who have a privilege of the same kind take proportionately, although their debts be of different dates. And all privi- leges have equally a preference over those of an inferior class, and over debts which do not have this favored character, whether subsequent or antecedent in point of time. The vendor of immovable property, for which payment has not been made, is pre- ferred before creditors of the purchaser, and all other persons, as to the thing sold. By the Roman law, this principle applies equally to movables and immovables; and the seller may seize upon the property in the hands of his vendee, or wherever he can tind it. So, too, a person who has lent money to repair a thing, or to make improvements, has this privilege. And this, though he lends to workmen or architects, etc., if it be done with the knowledge of the owner. Carriers have a privilege not only for the price of carriage, but for money paid on account of the goods. Landlords have a privilege for the rents due from their tenants even on furniture of the under-tenants, if there be a sub- lease. But not if payment has been made to the tenant by an immediate lessor; al- though a payment made by the sub-tenant to the landlord would be good as against the tenant. The privilege was lost by a novation, or by anything in the original contract which showed that the vendor had taken some other security inconsistent with the privilege. See Domat, pt. i. lib. iii. tit. 1. sec. v. See Dalloz, Dict. Privilege; LIEN; LAST SICKNESS: PREFERENCE. In Maritime Law. An allowance to the master of a ship of the general na- ture of primage, being compensation, or rather a gratuity, customary in certain trades, and which the law assumes to be a fair and equitable allowance, because the contract on both sides is made under the knowledge of such usage by the parties.

Explore the full Law Mind legal research platform.

Subscribe Encyclopedia Sign In