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in the presence of each other; he showing them severally where to write their names. But then the said Thomas Wallis, otherwise than as above, did not declare or publish either part to be his will, or say what it was.
The counsel for the plaintiff contended, that this was not a sufficient proof by one witness, of a complete execution of the will. And they produced, on the other hand, the other two subscribing witnesses, who, in divers particulars, did not give a clear and distinct evidence, and could not recollect whether they had signed one or two papers, or whether then, or at any time before the said Thomas Wallis's death, they understood what they had so witnessed to be the said Thomas Wallis's will, though Wardell seemed to admit he conjectured it so to be. But both YVardell and Matthews swore that they did not see the said Thomas VValiis sign or seal either part of his said will; that Poweh1 the other subscribing witness, was not at that time in the room, when (at the said Thomas Wallis's desire) they wrote their names to the two papers as they now appear; that the said Thomas Wallis did not declare or publish it as his will, nor did they know it to be a will. The defendant's counsel then called Richard Price, the said Thomas Wallis's groom, who swore, that one morning, in the beginning of 1760, James Wardell told him that his master had much wanted him; and that upon this, the said Price's offering to go to his master to receive his orders, * [ 313 ] *the sakl Wardell told Price that the business was done, and that Powell had supplied his place; and that he the said William Powell, James. Wardell, and Isabella Matthews, had that morning been witnessing their master's will. And Sarah Dixon being called, swore, that in the beginning of July, 1760, Isabella Matthews came one morning after breakfast into the kitchen, and told her, that she the said Matthews, James Wardell, and William Powell had that morning witnessed their master's, the said Thomas Wallis's will, though he had not told them it was so. Upon this state of evidence on both skies, it was insisted for the plaintiff, that as the law stood before the statute of frauds, publication of a will was an essential part thereof; and if so, there is nothing in that statute to take it away: and further, it was insisted, that by the said statute there are four requisites to constitute a good and valid devise of lands: first, that it shall be in writing; second, that it shall be sigued by the party devising, or by some other person in his presence, and by his express directions; third, that it shall be attested and subscribed in the presence of the devisor, by three or four credible witnesses; fourth, that the words attested and subscribed must import, that it shall be published as a devise or will by the testator in the presence of the said witnesses.
On the contrary, for the defendant it was insisted, that neither before nor since the statute, publication was necessary; and that by the statute only the three first requisites are necessary, which in the present case were all complied with, the devise being in writing, and signed by the testator in the presence of three credible witnesses, who had subscribed their names as witnesses to the same in the presence of the testator and of each other: and further, supposing any such publication was necessary, that the testator had used words and done acts which amounted to a publication within the meaning of the statute, which had not directed or prescribed any particular form or manner in which such publication should be made; that the testator using these significant words to all the witnesses, when he called them up to the table, *" take notice," and then signing both parts of his will, •[ 314] and then delivering both tWe parts thertof to the witnesses to attest, directing them where to sign their names, and to witness each part under the common and usual form of attestation, which the witnesses did, was a sufficient excuse and publication of his will. That the words "signed, sealed, published, and declared," being all written in the testator's own hand-writing, and the witness, Powell, swearing that both the parts of the will lay open to the inspection of all the witnesses when they subset ibed their names, and it appearing by the evidence of Price and Dixon, that both the other witnesses had declared that they had been attesting the said Thomas Wallis's will; this was much stronger than the case of Peate and Ougley, reported in Comyns, 197. And Mr. Justice Denison was of opinion, if the witnesses for the defendant were credited by the jury, that this was a due execution within the statute, and a sufficient publication ; and for this he cited the case of Trimmer and Jackson, lately determined in the court of King's Bench; and the jury found, accordingly, a verdict for Mrs. Wallis, defendant. Nevertheless, the plaintiff's counsel insisted, that the point, whether a good publication or »ot, showld be reserved for a case to be argued above; but the
matter was compromised on the defendant's remitting the costs.; 117)
A will may Neither the statutes of Henry the Eighth, or that of Charles
be written the Second, have imposed any restriction upon the testator as to the
upon any material upon which, or the language in which the will is to be writ. material,and . . .„ . , . , .
in anv lan- ten' lt s'f?"'"*8 not, whether it be written on paper or parchment, or guagc or whether the language in which it is composed be English, Latin, characters. French, or any other idiom, nor in what hand or letters, whether in a secretary hand, court hand, or Roman hand, so long as it is fair and legible, so as to be read and understood ; neither is it material whether the same be written at large, or by notes or characters, usual or unusual. So also, if some words be omitted, or an improper sentence used, provided the meaning and intent is apparent: as, where a man says, "I make my'wife of this my last will and testament." leaving out the word executrix, the will is good, and the omitted words shall be understood. But if the will be so written as that it cannot by any possibility be read, or if, when read, it is perfectly unintelligible, the will is of necessity void. But in Masters v. Masters, 1 P. Wms. 425, where the will was written so carelessly as to be scarcely legible, and the legacies were in figures, it was referred to a master to examine what those legacies wore, and ordered that he should be assisted by such as were skilled in the art of writing. Vid. Swinb. part 4, sect. 25. Qf the local As the local extent of the statute of frauds has sometimes been a extent of the question on the application of this clause concerning the execution of wills, it may seem proper to say something on that head, which, perhaps, mav be more suitably introduced in a note than in the text. la some of our colonies, the statute of frauds, in respect to the attestati n of wills, h is been received as law, and become established by usage; and in others, its regulations have been partially or generally adapted and established by act of assembly. But where neither usage nor act of assembly has introduced the statute of frauds, the resort must be to the general and received maxims upon which our courts have proceeded in determining the question, whether a law has place in any of our plantations or colonies. And to furnish the reader with some grounds for forming a general judgment on these questions, I have transcribed a page from the Commentaries of Sir William Blackstone on the subject. "Plantations or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them ilesart and uncultivated, and peopling them from the motht r country; or where, when already cultivated, they have been either granted by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations But there is a difference between these two species of colonies with respect to the laws by which they are bound: for it hath been held,
IT seems now proper to consider the extent of this clause o f That the sta
the statute of frauds, with respect to the subjects to which tit tute d,oes "ot
r J _ extend to cois applicable: and first, it may be received as settled doctrine, pyholds. t C 316 3
that if an uninhabited country be discovered and planted by English subjects, all the English laws then jn being, which are the birth-right of every subject, arc immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own own situation and the conditio of sn infant colony; such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people, the laws of police and revenue, (such especially as are enforced by penalties) the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and, therefore, are not in force. What shall be admitted, and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and controul of the King in Council; the whole of their constitution being also liable to be new modelled and reformed by the general superintending power of the legislature of the mother country.
'But in conquered or ceded countries, that have already laws of their own, the King may, indeed, alter and change those laws ; but till he does actually change them, the ancient laws of the country remain, unless such are against the law of God, as in an infidel country. 7 Rep. 17, Calvin's case, and Show. Parl. Cas. 31 Our American plantations are principally of this latter sort, having been obtained, either byright of conquest, and driving out the natives, (with what natural justice I shall not at present inquire) or by treaties; and, therefore, the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct, though dependent dominions. They are subject, however, to the controul of the parliament ; though (like Ireland, Man, and the rest) they are not bound by any acts of parliament unless specially named. Vid. lBlackst. Comm. P. 106; and see Salt 411.
According to these rules it was said by the Master of the Rolls, Sir Joseph Jekyll, to have been determined that the statute of frauds and perjuries, which requires three witnesses, and that these should subscribe in the testator's presence, in the case of a devise of land, does. that copyholds are not affected by its requisitions, but *stund clear of this statute as well as of the statute of wills, and the statute of uses. It has before been observed, that tthv statutes
not bind in BaAadoes, 2 P. Wms. 74; and that the Island of Bermuda is not affected by it, appears by the case of Sneddon v. Goodrich, 8 Vez. jun. 4. 81. The argument of Lord Mansfield, in the case of Campbell v. Hall, Cowp. 204, is highly deserving of the reader's attention, where he will find the following positions learnedly sustained: That a country conquered by the British arms, becomes a dominion of the King in right of his crown, and, therefore, necessarily subject to the legislature—the parliament of Great-Britain. That the conquered inhabitants, once received under the King's protection, become subjects, and are to be universally considered in that light, not as enemies or aliens. That the articles of capitulation upon which the country is surrendered, and the articles of peace by which it is ceded, are sacred and inviolable accordingto their true intent and meaning. That the law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives. That the laws of a conquered country continue in force, until they are altered by the conqueror: the universality and antiquity of which maxim is shown by the absurd exception as to Pagans mentioned in Calvin's case ; for that distinction could not exist before the Christian acra; and in all probability arose from the mad enthusiasm of the Croisades. That if the King, without the concurrence of parliament, has a power to alterthe old and introduce new laws into a conquered country, this legislation being subordinate, that is, subordinate to his own authority in parliament, he cannot make any new change contrary to fundamental principles : he cannot exempt an inhabitant from that particular dominion ; as, for instance, from the laws of trade, or from the power of parliament, or give him privileges exclusive of his other subjects; and so in many other instances which might be put. That this power of legislation in the King alone, over a conquered country, continues in him only while such country remains in a state of conquest; but that if a constitution be given to such couibtry by proclamations, grants, or otherwise, and from being in a state of conquest, it is erected into a colony with provisions for a subordinate legislation and administration of its own, the crown is precluded from an exclusive authority to legislate for such conquered country, and no law can be imposed on the inhabitants but by the acts of their own assemblies, or by act of parliament . I shall close this note with observing, that as the devise of lands in other countries will