y Sir William Grant, Master of the Rolls, in Addy v. ent if the the test upon acknowledgment by the testator of his signature, without seeing him actually sign. *[389] to be fairly inferible from the decision in Lemayne It is sufficithat the court were of opinion, that it was not witnesses atthat the witnesses should attest the very act of signout that an acknowledgment by the testator, that the act signing was done by him, was sufficient for them to attest; for since not the sealing, but the writing over the will with the testator's name in it, was the ground of the decision, the witnesses *must have seen this done, if it was judged insufficient for them to attest upon the acknowledgment of the testator; but this was not so found by the jury, or it would have put an end to all controversy upon the case; and if the witnesses did not attest the writing of the whole will by the testator, their attestation could only go to his acknowledgment of his signature. This point, however, seemed to exist in some doubt during a long time after the statute was passed. In Dormer v. Thurland,(s) where the will was not signed by the testator in the presence of the witnesses; but he acknowledged it to be his hand, and declared it to be his will in their presence; Lord Chancellor King inclined to think that the will was good, but ordered the point to be reserved, and made a case for further consideration.(138) However, in Stonehouse v. Evelyn,(t) which came before the Master of the Rolls (Sir J. Jekyll) a few years afterwards, the will was held good, though the witnesses did not see the testator sign it, but he owned it before them to be his (r) 8 Vez. jun. 504. (s) 2 P. Wms. 506. (t) 3 P. Wms. 254. (137) According to the report of the case of Lemayne v. Stanley, in Freeman, the court were of opinion, that if the testator had his name on a stamp, it would be enough if he thus impressed his name instead of writing it. And in Strange v. Barnard, 2 Bro. C. C. 585, it was held, that stamping was equivalent to sealing. By the civil law, if a testator could not write, he was not admitted to make his mark, but an eighth subscribing witness (seven being the ordinary legal number) was called in to subscribe in the place of the testator. C. 6. 23. 1. (138) But the judges of B. R. on argument, held the will void, as a charge, for want of being sealed, according to the direction of the power. * [ 388] witnesses swore that J. S. the testator did not publish the writing as his will, but that A. B. guided his hand, and J. S. made his mark, but said nothing, was too mixed a case, to be admitted as an authority to this point. The observations made by Sir John Strange in the above cited case of Ellis v. Smith, on the question as to sealing, do certainly seem as strongly to apply to a testator's mark, for it identifies nothing: it carries no character. But in the late case of Harrison v. Harrison,(q) it was decided by Lord Eldon, that the attestation of a devise by a mark, was good within the statute; and as the statute requires the attestators to subscribe, and the testator to sign, it may be thought that the principle of this determination is applicable a fortiori to the signature of the testator himself, since the word subscribe' seems much more forcibly to point to the actual hand-writing, than sign,' which, without any strain upon its grammatical sense, though, perhaps, not without some sacrifice of its popular and usual acceptation, might be deemed to be satisfied by any symbol of the testator's consent and ratification. In the above-mentioned case of Harrison v. Harrison, the question was made upon a bill by devisees against the heir, *whether the will was duly executed to pass real estate according to the statute of frauds, one only of the witnesses having subscribed his name, the two others having attested by setting their marks respectively. Lord Chancellor Eldon observed, that upon inquiry from Mr. Serjeant Hill, he had found, that there was a special case reserved in the Court of Common Pleas whether, a will devising real estate was well executed, one of the witnesses being a marksman; and it was held clearly sufficient. It was a case of Gurney v. Corbet in 1710, in a note book, which was the property of Mr. Justice Burnet. His Lordship said, he thought there might have been a great deal of argument upon it originally. But upon this authority the plaintiff must take a deIn a few months afterwards, the same point was determin cree. (q) 8 Vez. jun. 185. The counsel for the plaintiff is stated to have adverted to the difference of expression in the statute, with reference to the witnesses and the devisor; and to have remarked the difficulty of making the proof, in case of the witnesses being dead. ed by Sir William Grant, Master of the Rolls, in Addy v. Grix,(r) agreeably to the decision of the Chancellor in Harrison v. Harrison, and, therefore, seems now to be at rest.(137) testator of seeing him actually sign. It seems to be fairly inferible from the decision in Lemayne It is suffici ent if the v. Stanley, that the court were of opinion, that it was not witnesses atnecessary that the witnesses should attest the very act of signtest upon the acknowledg ing, but that an acknowledgment by the testator, that the act ment by the of signing was done by him, was sufficient for them to attest; his signafor since not the sealing, but the writing over the will with the ture, without testator's name in it, was the ground of the decision, the witnesses *must have seen this done, if it was judged insufficient * [ 389 ] for them to attest upon the acknowledgment of the testator; but this was not so found by the jury, or it would have put an end to all controversy upon the case; and if the witnesses did not attest the writing of the whole will by the testator, their attestation could only go to his acknowledgment of his signature. This point, however, seemed to exist in some doubt during a long time after the statute was passed. In Dormer v. Thurland,(s) where the will was not signed by the testator in the presence of the witnesses; but he acknowledged it to be his hand, and declared it to be his will in their presence; Lord Chancellor King inclined to think that the will was good, but ordered the point to be reserved, and made a case for further consideration.(138) However, in Stonehouse v. Evelyn,(t) which came before the Master of the Rolls (Sir J. Jekyll) a few years afterwards, the will was held good, though the witnesses did not see the testator sign it, but he owned it before them to be his (r) 8 Vez. jun. 504. (s) 2 P. Wms. 506. (t) 3 P. Wms. 254. (137) According to the report of the case of Lemayne v. Stanley, in Freeman, the court were of opinion, that if the testator had his name on a stamp, it would be enough if he thus impressed his name instead of writing it. And in Strange v. Barnard, 2 Bro. C. C. 585, it was held, that stamping was equivalent to sealing. By the civil law, if a testator could not write, he was not admitted to make his mark, but an eighth subscribing witness (seven being the ordinary legal number) was called in to subscribe in the place of the testator. C. 6. 23. 1. (138) But the judges of B. R. on argument, held the will void, as a charge, for want of being sealed, according to the direction of the power. hand. And the reporter adds, that on his mentioning this opinion of the Master of the Rolls to Mr. Justice Fortescue Aland, he said it was the common practice, and that he had twice or thrice ruled it so upon evidence on the circuit; and that it was sufficient if one of the three subscribing witnesses swore that the testator acknowledged the signing to be his own hand-writing. Sir Joseph Jekyll had delivered a similar opinion a little before in a case of Smith v. Codron, cited by Lord Hardwicke in Grayson v. Atkinson.(u) In that case, A. signed and published a will in the presence of two persons, who attested it in his presence; then a third person was called in, and the testator showing him his name, told him, that that was his hand, and bid him witness it, which he did, and subscribed his name in the testator's presence; and the testator, two hours after, told [390] him that the paper he had subscribed was his will. His Honour held this to be a good execution. But in the instructive case of Grayson v. Atkinson above referred to, this point came fully under the consideration of Lord Hardwicke. The bill was to establish a will against an heir at law, who, by his answer, raised the doubt, whether as all the witnesses did not see the testator sign, though he saw them all sign, this was a good attestation within the statute. The Chancellor, adverting to the argument of the counsel for the defendant, in which they had insisted, that the word attested' superadded to subscribed' imports that the attestators shall witness the very act and factum of signing, and that the testator's acknowledging that act to have been done by him, and that it is his hand-writing, is not sufficient to enable them to attest, but that it must be an attestation of the thing itself, and not of the acknowledgment, observed, "that certainly there must be an attestation of the thing in some sense, but the question was, whether, if they attest on the acknowledgment of the testator that that was his hand-writing, that was not an attestation of the act, and whether it was not to be construed agreeable to the rules of law and evidence, as all other attestation and signing might be proved. At the time of making that act of parliament, and ever since, if a bond or deed was executed and signed, and afterwards the witnesses were called in, and before the witnesses, the person making it, acknowledged (u) 2 Vez. 455. the signature to be his hand-writing, that was always considered as an evidence of signing by the person executing, and was an attestation of it by them. It is true, said his Lordship, there is some difference between the case of a deed and a will in this respect, because signing is not necessary to a deed, but sealing is; and I do not know that it was ever held, that acknowledging the sealing, without witnesses, has been sufficient. But, not withstanding, that is the rule of evidence in respect to signing. If it was in the case of a note, or declaration of trust, or any other instrument not *requiring the solemnities of a deed, but [391] bare signing, if that instrument is attested by witnesses, proving that they were called in, and that the party took up the instrument, and said, that was his hand, such would be a sufficient attestation of the signing by him. That is the rule of evidence. Considering, therefore, the words of the act of parliament, it seems, that if the testator having signed the will, did, before the attestators, declare and acknowledge he had so done, and that the signature was his hand, that might be sufficient to make the attestation good." The great case of Ellis v. Smith,(x) came on in 1754, which was about two years after Grayson v. Atkinson, and here the Lord Chancellor Hardwicke was assisted by Sir John Strange, Master of the Rolls, Willes Chief Justice of B. R. and Parker Chief Baron. The form in which the question is reported to have been put, was, whether a testator's declaration before three witnesses, that it was his will, was equivalent to signing it before them, and constituted a good will within the 5th section. The determination of Grayson v. Atkinson, by Lord Hardwicke, was in this case mentioned by the Master of the Rolls, as an authority full to the point upon the first question; and his Honour said, that to determine otherwise at that time, would introduce confusion and uncertainty, and sap the foundation of much property which rested on former decrees. The court was unanimous, in holding such acknowledgment by a testator to the attestators of his will, to be good within the (x) 1 Vez. jun. 11. But see Grellier v. Neale and others, Peake, Ni. Pri. Ca. 146. Seɛ also Parke. Mears, 2 Bos. et Pull. 217. |