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a great incidental importance is reflected, by the exercise they have given to two of the finest intellects which have adorned the bench of justice, in the maintenance of a most solemn and diametrical opposition of argument.
We cannot but observe, however, that, although Lord Mansfield was supported by all his brothers, and Lord Camden was overruled by those who sat with him, the legislature showed their sense of the subject to agree with the policy and principles of Lord Camden's reasoning, by extinguishing the interest of the subscribing witness, whatever it might be at the moment of his attestation. By this provision of the legislature by their second act, they seem to have declared their intention by the first; and still, in their alteration of the law, regarding the time of the attestation as the critical juncture to which the qualification related, t hey have made the interest of the individual a sacrifice to the will.
An attentive consideration of what has been above laid before the reader will, it is hoped, enable him to peruse a statute with intelligence, the true spirit whereof, without a display of the state of the controversy which gave it birth, might not so easily present itself. That it may be read and considered by the student with the more advantage, by falling into the train of those ideas which have been already given him by what has gone before, I have thought it best to copy out the whole act, and insert it immediately after the statute of frauds and perjuries, which it seemed likewise advisable to introduce entire at the end of this volume, for the greater facility of reference.
•PART V. • I 427 3
WE come now to consider the constructions put by the courts Of the words of justice upon the words of the statute, requiring the subscript. subscripfiorf
tion of the witnesses to be made in the testator's presence. °f the wit
, . .... .,, , nesses to be
Upon a feigned issue, tried in the court of Common Pleas, the in the testaquestion was, whether the will was made according to the sta- tov>* Pre"
tute of frauds ? for the testator had desired the witnesses to go That it is e
into another room, seven yards distant, to attest it, in which there noujrh if the
was a window broken, through which the testator might see them. ^j/^tsee the
The Court said, the statute required attesting in his presence, to witnesses
prevent obtruding another will in the place of the true oae. It Jid^ioualiy see them or is enough if the testator might see, it is not necessary that he not' should actually see them signing ; for, at that rate, if a man should
turn his back, or look off, it would vitiate the will. Here the signing was in the view of the testator; he might have seen it, and that is enough. And they compared it to the case, where the testator lay sick in bed, with the curtain drawn,(r) while the witnesses subscribed.
On a trial at bar, where the question was, whether the witnesses to a will had pursued the directions of the statute of frauds, in their modes of subscribing their names, it was resolved, that where the testator lay in a bed in one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that, and the door of the room where the testator lay, were open, so that he might see them subscribe their names if he would, though there was no positive proof that he did see them subscribe their names, there was a sufficient subscribing within the meaning of the statute; because, it was possible that * [ 428 ] testator might see them "subscribe ; and, therelore, the court ''' ' held, that if the witnesses subscribed their names in the same room where the testator lay, though the <urtains of the bed were drawn close, it was a good subscribing within this statute.(*)(155) A similar doctrine to that which we have shown to have been maintained in the courts of law, was adopted by Lord Thurlow in the court of Chancery, in a case circumstanced as follows :(/) Honora Jenkins, having a power, though covert, to make a writing in the nature of a will, ordered the will to be prepared, and
(r) Shires v. Glascock, 2 Salk. 688. (*) Davy and Nicholas «
Smith, 3 Salk. 395. (t) Casson v. Dade, 1 Bro. C. C. 99.
(155) The notion of the civil lawyers was more rigid and cautious in this respect. The attestation ought to be in conspectu testataris ; and filrthe r, non est satis, ut qui Jam tradiderunt, testes oculatos esse, si testato . rem ipsi non videant, forte veto aut Cortina interjecta conspectum aaimente, licit vocem ejus audiant: sed necesse est ut faciem ejus videant, ne qua fraus ftat alio forte subornato, qui vocem testatorts imitando simulet. Vinn. Com. 1, lib. 2, tit. 10. And Vinnius was of opinion that a blind man (de quo nihil traditum est) could not be a witness, because he could not satisfy the law, which required that the testator should be seen by the witnesses, and that they should be able to recognise the testator'* signature. This point may make a quaere in our own law.
went to her attorney's office to execute it. Being asthmatical, and the office very hot, she retired to her carriage to execute the will, the witnesses attending her; after having seen the execution they returned into the office to attest it ; and the carriage was put back to the window of the office, through which, it was sworn by a person in the carriage, that the testatrix might see what passed. Immediately after the attestation, the witness took the will to her, which she folded up and put into her pocket. The Lord Chancellor inclined very strongly to think the will well executed, and the above-mentioned case of Shires and Glascock, 2 Salk. 688, was relied upon as an authority. Mr. Arden pressed for an issue, but, finding the Lord Chancellor's opinion very decisive against him, he declined it.
•In Broderick v. Broderick,(u) where the testator devised * [ 429 ] lands to J. S. and his heirs, and duly subscribed his will in the presence of three witnesses, who went down stairs into another room, and attested the will there, which was out of the presence of the testator, the relief afforded to the heir against a release obtained from him by the devisee, under a false assurance that the will was sufficiently executed, was a necessary consequence of the opinion of the Chancellor,(jr) that the devise was void for want of an execution conformable to the statute. And it was in vain contended for the devisee, that the will, as to the devisor, was executed, and that the form of the witnesses subscribing in the presence of the testator, was only prescribed by the statute of frauds, to prevent a rash disinherison of the heir: but that since the execution of the will was fully proved, though the circumstances required by the statute had not been observed, yet, it was the plain intention of the testator, that the devisee should have the estate; and that the devisee having the legal estate, it would be hard to take it from him in equity, and by those means to dispose of the estate against the intent of the testator, from the devisee, for want of a ceremony, when the end of that ceremony was answered, by its being made to appear, undoubtedly, that the testator did sign and seal this will.
Nor will the subscription of the witnesses in the same room always accomplish the intention of the statute, or necessarily imply it to be in the testator's presence, for, as was observed by
Lord Chancellor Macclesfield, in Longford v. Eyre^y) it might be done in a corner of the room in a clandestine and fraudulent way, and then it would not be a subscribing in the testator's presence. But his Lordship further said, that as it was sworn by the witness, that he subscribed the will at the testator's request, and in the same room, that could not be fraudulent, and was well enough.
* [ 430 ] *Thus, therefore, the law upon this subject seems sufficiently
settled upon this distinction, that if the attesting witnesses subscribe the will in such a situation with respect to the testator, as that it was not possible for him to have seen the act done by them, such will is void as to real estate for the defect of solemnity in its execution; but if their situation was such as to afford the testator the opportunity of seeing them subscribe, if he chose, their attestation under such circumstances will be good and valid, although in point of fact they were not seen by the testator in tho very act of subscribing their names. It is not e- The mere corporal presence, however, of the testator, unless the^testltor ms mind faculties also are present, will not satisfy the stais corporally tute on this point ; for there must be a mental knowledge of the present, he w that, as a su5scrlption clandestinely made in a corner of his faculties the same room with the testator, was not on this account a suffihinfa mental clent attestation, so neither would such subscription in the same knowledge room suffice, if the percipience and intelligence of the testator were gone so as to constitute it an act done without his knowledge. On this principle was founded the decision of Right v. Price^z) in which case, the form of an attestation was written on the second sheet, and they put their names to it in the room where ths testator lay, but he was in a state of insensibility.— And the question was, whether this will was duly executed for passing lands according to the statute of frauds?
In support of the will it was argued, that insensibility was something short of death, and if the testator was alive, it could not be said that the will was not attested in his presence. That the question was, whether the testator, having done all that was necessary on his part, and the attestation having been made according to the words of the statute, a fair transaction should be
* [ 431 ] set aside, because a formality required, "according to an implied.
(jo 1 P- Wm». 740. (z) Doug. 241.
intention of the legislature, had not been complied with; that it did not appear but that the testator might, by possibility, have opened his eyes, while the witnesses were subscribing their names; which, according to the law, as laid down in Shires and Glascock, would have been sufficient.
But the court said, that they would lean in support of a fair will, and not defeat it for a slip in form, where the meaning of the statute had been complied with; this was the principle of Shires and Glascock's case, and other cases of that sort. But the case then before the court was not one where there was a measuring cast and room for presumption. All the witnesses knew, at the time of the attestation, that the testator was insen- , sible. He was a log, and totally absent to all mental qualities. That it was usual, in precedents of wills, to say, that the witnesses subscribed at the request of the testator ; that, indeed, was not expressly required by the statute, but the practice showed the general understanding, and that the nature of the thing implied a request. The attestation in the testator's presence was as essential as his signature, and all must be done while he was in a capacity to dispose of his property. In this case, the testator could not know whether the will that he had begun to sign was that which the witnesses attested; he was dead to all purposes or power of conveying his property.
I do not know that it has ever been judicially decided, whether Whether ait an acknowledgment by a subscribing witness to the testator of J^J^^ ^ his hand-writing to the attestation, would be sufficient. In the the subscribcase of Risley v. Temple,(a) the facts were, that the testator, ly- ^the1testaing sick in bed, made his will, and signed, sealed, and published tor would be it, in the presence of three witnesses, but being tired, ordered su®c1ent. them to go and subscribe it in another room. They went into another room, out of the presence *and sight of the testator, and •[ 432 ] subscribed their names, and then returned and owned their names to the testator, who looked upon the will, and said, ' they have done well.' But this point was not spoken to in the case according to the report. ,
It seems very plain, however, that to hold such an acknowledgment sufficient, would be in direct opposition to the words of • the statute, which, though it does not by the 5th section require
(o) Skin. 107.