leading cases to establish this point, are, Cook v. Parsons,(b)

and Jones v. Lake.(c) The first of which cases was decided

*upon a bill of review to reverse a decree of Lord Nottingham *[434] in 1682, for a sale of lands subjected by the will to the payment of debts; the lands were devised by the testator to trustees, and their heirs, to set and to farm let, and out of the rents (without saying profits) to pay his debts; and all his debts and legacies being first paid, he gave the surplus to F. S.

This will was written with the testator's own hand, as was proved; and was published in the presence of three witnesses, at three several times, and they all attested it in his presence, but he did not sign it in the presence of the second witness, but only owned the signing to be his hand, and desired him to attest (b) Prec. Ch. 185. (c) 2 Atk. 176.

ex hac causa testamentum subvertendum, licet morbus comitialis, (quod et factum esse comperimus) uni ex testibus contigerit; sed eo, quod urget et imminet, repleto, vel deposito, iterum solita per testamenti factionem adimpleri. Et si quidem a testatore aliquid fiat testibus paulisper separatis, cum coram his facere aliquid naturale testator erubescat iterum introductis consequentia factionis testamenti procedere.

The phrase 'uno contextu' is not to be understood as relating to the composition of the will, (which it seems might be taken up and prosecuted at intervals, according to the necessary interruptions of business, and as the leisure of the party allowed; as was said to be the law with us, in Carleton v. Griffin, above cited) but to the mode of publishing and solemnizing the will, by the formal nuncupatio testamenti, or declaratio voluntatis to the witness, with the ceremonies of subscribing and sealing by them, and the signing by the testator, which ought all to be done at one time, that is to say, uno actus contextu, without the intervention of any act or business foreign to the purpose, which the parties were met together upon, which, unless it happened on the natural and necessary occasions alluded to in the passage from the code above extracted, would vitiate the testament, as being inconsistent with the solemnity of its celebration. Thus Vinnius translates uno contextu’ into the Greek by 'mia 'uphe, and adialeiptos, as being applicable not to the composition of the will, but to the publication of it; which is plainly the sense of it, as it stands accompanied in the text of the institutes, "et testes quidem eorumque præsentia, uno contextu, testamenti celebrandi gratia," &c.

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the will, as was proved by that witness. The testator died, leaving an infant heir, and the land was decreed to be sold, and no day given the infant to show cause against it. One of the objections to the decree was-that this was no good will within the statute of frauds and perjuries, because not attested by all the witnesses at one time, and that one of them did not see the testator sign, but only hear him own that it was his hand.

But the Lord Keeper held a publication of a will before three witnesses, though at several times, to be sufficient, and thought the writing the will with the testator's own *hand,(157) a sufficient signing within the statute, though not subscribed nor sealed by him, but doubted whether acknowledging the subscription to be his own would suffice.(158)

In Jones v. Lake, the case upon the special verdict was thusthe testator signed and executed his will in December, 1735, in the presence of two witnesses, who attested the same in his presence; afterwards, in the year 1739, he with his pen went over his name, in the presence of a third witness, who subscribed his name in the testator's presence, and at his request. And the question was, whether this was a due execution within the statute. For the heir at law it was argued, that the statute requiring three witnesses to subscribe in the testator's presence, must intend they should be all present together; otherwise, there was not that degree of evidence which the statute requires; for an attestation of three witnesses, at different times, has only the weight of one witness. Witnesses to a will not only attest the due execution of the will, but likewise the capacity of the testator at the time of execution. A man may be sane at the time two witnesses attest, and insane when the third attests. It cannot be considered as a will, till the third witness hath signed, for that completes the The will was dated in 1735; suppose lands to be purchased after the date, and before the attestation by the third witness, would the lands pass? certainly not.

act.

(157) According to the Code 6, 23, 28, the writing of the will with the testator's own hand, dispensed with his signing; but it was added as a condition, et hoc specialiter in scriptura reposuerit, quod hoc sua manu confecit; but it dispensed with no other solemnity.

(158) This question has been already sufficiently discussed.

On the other hand, it was argued for the devisee, that the will executed before three witnesses, though at three different times, was good; the statute not requiring they should all be present at the same time. That the requisites under the *statute were, that *[436] the testator should sign in the presence of three witnesses at least, and that they should attest in his presence. It would therefore be adding new requisites which the act did not mention, and in effect be making a new law.

The Lord Chief Justice Lee said, the case depended upon the words of the statute. The requisites in the statute were, that three witnesses should attest his signing, but it did not direct that the three witnesses should be all present at the same time. Here, said the Chief Justice, you have the oath of three attesting witnesses. This is the degree of evidence required by the statute. And the same credit is given to three persons at different times, as at the same time. We cannot carry the requisites farther than the statute directs. The act is silent as to this particular. It would therefore be making a new requisite. The signing is the same act reiterated. The testator went over his name again, and declared it to be his last will. Judgment was accordingly given against the heir at law.

The judges, in the case of Ellis v. Smith,(d) admitted the authority of these cases, and drew from them an inference in favour of the validity of the testator's acknowledgment to the witnesses of his hand-writing to the signature of the will. "To strengthen the authorities I have already mentioned, said the Lord Chief Baron Parker, I shall take notice of the cases which allow the witnesses to subscribe at different times; and I think they support the admission of the declaration in question; since the testator is not supposed to run over his name before every witness, but having signed before one, to acknowledge it only before the rest.(159) The same conclusion *was drawn by Lord Chancellor * [ 437 ] Hardwicke, Sir John Strange, Master of the Rolls, and Lord

Chief Justice Willes.

The last of whom observed, that the au

(d) 1 Vez. jun. 11.

(159) In Jones v. Lake, the last case produced, the testator did run over his name again; but the principle of the decision implied the suf, ficiency of an attestation, made at three distinct times,

thorities not in point supported the decree more strongly than those in point, for they allowed the attestation and subscription of the witnesses at different times to be good; and the testator is presumed to write his name only before one, and to acknowledge it to be his hand to the remaining two. And in the opinion of the Master of the Rolls, to permit the witnesses to attest at several times, was to admit the asseveration of the testator that it was his will, to be equivalent to signing it before the witnesses; to which Lord Hardwicke added, that he differed from those who thought that the cases which had been mentioned, only supported the case before the court, by consequential reasoning; he thought them directly in point.

It is to be observed, however, that these decisions, in the opinion of the whole court, went too far, and opened the way to frauds, and particularly the Chief Justice observed, with great force, that " he had known one man swear, that he did not see the testator sign, and the other two swear that he signed it before the three; so might one man swear, that when he attested the will, the testator was insane; another, that he was sane; and thus an inlet was given to great frauds and impositions. attested it simul et semel, they were a check upon each other, and such frauds were prevented ;(160) nay, said his Lordship, I

But when they

(160) This was certainly the doctrine of the civil law, from which the framers of the statute in question borrowed, in making this provision for preventing the forgery of wills. We have shown that the words 'uno contextu' related to the complex ceremony of publication, which was necessary to be done by a continued act. The attestation, therefore, which was an essential part of the publication, was necessary to be done by the witnesses, simul et semel, at the same time, at the same place, and in sight of each other; not meaning, of course, by the same time, eodem instanti, but uno actus contextu, at one juncture, without break or interruption, as the text of the Code 6, 23, 21, well explains, distinguishing at the same time between the act of making, and that of celebrating and publishing the will, to which last mentioned act the words

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uno contextu' are shown to be only applicable. In omnibus autem testamentis, quæ presentibus vel absentibus testibus dictantur superfluum est uno, eodemque tempore exigere testatorem, et testes adhibere, et dictare suum

All solemn legal acts and ceremonies were necessary, by the civil law, to be executed without interruption, the common phrase to express which was, · uno contextu absolvi.'

think a parol *disposition before three, full as solemn an act as a will in writing, attested by three separatim." He admitted, however, that the decisions were the other way, and that the point was established.

*PART VI.

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attestation.

IT has been already made to appear, that a will of lands of the evimay be sufficiently established in a court of justice, as to the dence of the testator's signature, by proof of his acknowledgment thereof. It will be proper now to consider, what is sufficient proof of the due attestation of such a will, according to the directions of the statute. We have seen that in a case of authority, upon a question before the court, whether or not it should be left to a jury, to determine as to the fact of a due attestation in the presence of the testator, where all the witnesses were dead; it was clearly held, that such question was proper for the decision of a jury, who might found their verdict upon mere circumstances and probabilities. In the courts of common law, That in the where a will of lands is produced, it is usual to call but one witness to prove it; but that is said only to be the case where one of the subscribing no objection is made on the part of the heir, who is entitled witnesses to have all the witnesses examined, yet in such case the heir may prove the attestahimself must produce the other witnesses, for the devisee need tion by the produce only one, if that one can prove all that is requisite to others.

courts of common law

arbitrium, et finire testamentum ; sed licet alio tempore dictatum, scriptumve proferatur testamentum, sufficiet uno [tempore] eodemque die, nullo actu [extraneo] interveniente, testes omnes, videlicet simul, nec diversis [temporibus] scribere, signareque testamentum. Finem autem testamenti subscriptiones, et signacula testium esse decernimus. This exactness with respect to the simultaneous performance of the act of publication was retained out of the civil law, or jus civilis, when the civil and prætorian law were reduced into agreement, as I have before shown: for the form and validity of a will, as ultimately established, was a tripartite constitution. The necessity of witnesses, and their presence at one and the same time, was founded on the jus civilis—the subscriptions by the testator and the witnesses on the imperial constitutions-the sealing and the number of the witnesses, was settled by the edict of the Prætor.