In the construction of this last statute, (5) it has been adjudged that the testator's name, written with his own hand, at the beginning of *his [*377] married hor and had childron by her, it was held these circumstances, did not amount to a revocation of the will. Lord Ellenborough in his judgment says: "The doctrine of implied or presumptive revocation seems to stand upon a better foundation of reason, as it is put by Lord Kenyon, in Doe v. Lancashire, 5 T. R. 58, namely, as being 'a tacit condition annexed to the will when made, that it should not take effect, if there should be a total change in the situation of the testator's family,' than on the ground of any presumed alteration of intention; which alteration of intention should seem in legal reasoning not very material, unless it be considered as sufficient to found a presumption in fact, that an actual revocation has followed thereupon. But, upon whatever grounds this rule of revocation may be supposed to stand, it is on all hands allowed to apply only in cases where the wife and children, the new objects of duty, are wholly unprovided for, and where there is an entire disposition of the whole estate to their exclusion and prejudice. This, however, cannot be said to be the case, where the same persons, who, after the making of the will, stand in the legal relation of wife and children, were before specifically contemplated and provided for by the testator, though under a different character and denomination." 2 East, 530. See 5 Ves. Jun. 656. Where two wills are found in the possession of the testator, to invalidate the first the second should expressly revoke, or be clearly incompatible with, the first devise, for no subsequent devise will revoke a prior one, unless it apply to the same subject-matter. 1 P. Wms. 345.; 7 Bro. P. C. 344; Cowper, 87. A devise of real property is not revoked by the bankruptcy of the devisor. The master of the rolls said, "from the moment the debts are paid, the assignees are mere trustees for the bankrupt, and can be called upon to convey to him." In this case all the debts were paid, and the bankrupt had been dead some time. 14 Ves. 580. See also, as to implied or constructive revocations, 3 Mod. 218; Salk. 592; 3 Mod. 203; 2 East, 488; Carth. 81; 4 Burr, 2512; 7 Ves. Jun. 348; Cowp. 812; 4 East, 419; 2 N. R. 491, and post, "Title by Testament," 489, et seq.] It has been repeatedly held in the United States that the subsequent marriage and birth of a child are an implied revocation of a will, but that either marriage or birth of a child will not alone have that effect. And it is also held that the presumed revocation may be rebutted by circumstances evidencing a different intent. Brush v. Wilkins, 4 Johns. Ch. 506; Warner v. Beach, 4 Gray, 162; Coates v. Hughes, 3 Binn. 498; Walker v. Hall, 34 Penn. St. 483; Bloomer v. Bloomer, 2 Bradf. Sur. R. 339. Some changes have been made in this rule, for which the reader must be referred to the statutes of the several states. The marriage of a woman revokes a will previously made. Hodsden v. Lloyd, 2 Br. C. C. 534. But whether this would be so in those states where, after marriage, a woman has the same power to make a will as before, may well be doubted. The English statute of wills, 1 Vic. c. 26, provides that no will shall be revoked by any presumption of intention on the ground of an alteration in circumstances, but it also makes marriage an absolute revocation. () [As to what shall be deemed a sufficient compliance with this act, see 1 Fonblanque on Equity, 193; Phil. on Evid. chap. 8, sec. 8. It is observable, that the statute requires that the will shall be in writing, but it should seem it would suffice if in print, and signed by the testa tor. Semble, 2 M. and S. 286. It next requires, that the will shall be signed by the testator, or some other person in his presence and by his express direction. The first case in which this question was raised was Lemayne v. Stanley, 3 Lev. 1; 1 Eq. Ca. Ab. 403, in which case it was determined, that if the testator write the whole of the will with his own hand, though he does not subscribe his name, but seals and publishes it, and three witnesses subscribe their names in his presence, it is a good will; for his name being written in the will it is a sufficient signing, and the statute does not direct whether it shall be at the top, bottom, &c. But from the case of Right, lessee of Cater. v. Price. Dougl. 241, it may be inferred that the above decision will apply only to those cases where the testator appears to have considered such sufficient signing to support his will; and not to those where the testator appears to have intended to sign the instrument in form: and Mr. Christian, in his edition of Blackstone, 2 vol. 377, n. 5, properly observes, that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined; and see Powell on Devises, 63. In the case of Right v. Price, the will was prepared in five sheets, and a seal affixed to the last, and the form of attestation written upon it, and the will was read over to the testator. who set his mark to the two first sheets, and attempted to set it to the third, but being unable. from the weakness of his hand, he said he could not do it, but that it was his will; and on the following day, being asked if he would sign his will, he said he would, and attempted to sign the two remaining sheets, but was not able. Lord Mansfield observed, that "the testator, when he signed the two first sheets, had an intention of signing the others, but was not able; he therefore did not mean the signature of the two first as the signature of the whole will; there never was a signature of the whole. See also 4 Ves. Jun. 197; 9 Ves. 249. And if it appear upon a will of personal estate that something more was intended to be done, and the party was not prevented by sickness or death from signing, this declaration at the begi will, as, "I, John Mills, do make this my last will and testament:" is a sufficient signing, without any name at the bottom; (r) though the other is (r) 3 Lev. 1. ning is not sufficient. 4 Ves. 197, n.; 9 id. 249. But where a will, written on three sides of a sheet of paper, and duly attested, concluded by stating "that the testator had signed his name to the two first sides thereof, and his hand and seal to the last," and it appeared he had put his hand and seal to the last only, omitting to sign the two first sides, it was held that the will was well executed, as his first intention was abandoned by the final signature made by him at the time of executing the will. 5 Moore, 484; 2 Bro. and Bing. 650, S. C. So where the testator had executed such a will, but some years afterwards made various interlineations and obliterations therein, but which was neither re-signed, re-published, nor re-attested, but a fair copy was afterwards made, in which he added one interlineation not affecting his freehold estate, but the copy was never signed, attested or published, and the will and copy were found locked up in a drawer together; it was held that there was no revocation of the will as it originally stood; the alterations, &c., being merely demonstrative of an intention to execute another, never carried into effect. Id. The testator's making a mark at the foot of his will, if intended as a signature, is sufficient. Freeman Rep. 538. The next doubt that occurred upon this point was, whether the testator sealing his will was not a signing within the statute, and in 2 Stra. 764, Lord Raymond is reported to have held that it was; and of the same opinion three of the judges appear to have been, in 3 Lev. 1, on the ground that signum is no more than a mark, and sealing is a sufficient mark that this is his will; but in 1 Wils. 313, such opinion was said to be very strange doctrine; for that if it were so, it would be easy for one person to forge any man's will by only forging the names of any two obscure persons dead, for he would have no occasion to forge the testator's hand. And they said, "if the same thing should come in question again, they should not hold that sealing a will was a sufficient signing within the statute." But in 2 Atk. 176, Lord Hardwicke seems to have thought, that sealing without signing in the presence of a third witness, the will having been duly signed in the presence of two, would have been sufficient to make it a good will. It was held in a case where the testator was blind, that it is not necessary to read over the will previous to the execution, in the presence of the attesting witnesses. 2 New R. 415. The signing of the testator need not be in the presence of the witnesses; it suffices if he acknowledge his signature to each of them. 3 P. Wms. 253; 2 Ves. 451; 1 Ves. J. 11; 8 Ves. 504; 1 Ves. and B. 362. Upon the attestation of a will, many questions have also arisen. The first seems to hare been whether the witnesses must attest the signing by the testator, and upon this point, the statute not requiring the testator to sign his will in the presence of the witnesses, it has been held sufficient, if the testator acknowledge to the witnesses that the name is his. 3 P. Wms. 253; 2 Ves. 254. See also 2 P Wms. 510; Comyn's Rep. 197; 1 Ves. Jun. 11. The next question respecting the attestation was, What shall be construed a signing in the presence of the testator and upon this point, which first came into consideration in 1 P. Wms. 740, Lord Macclesfield held, that "the bare subscribing of a will, by the witnesses in the same room, did not necessarily imply it to be in the testator's presence; for it might be in a corner of the room, in a clandestine, fraudulent way, and then it would not be a subscribing by the witness in the testator's presence, merely because in the same room; but that here, it being sworn by the witness, that he subscribed the will at the request of the testatrix and in the same room, this could not be fraudulent, and was therefore well enough." So in the case in 2 Salk. 688, the testator having desired the witnesses to go into another room seven yards distant, to attest it, in which room there was a window broken, through which the testator might have seen, the attestation was held good; for that it was enough that the testator might see the witnesses signing, and that it was not necessary that he should actually see them. See also 3 Salk. 395. And Lord Thurlow, in 1 Bro. C. C. 99, relying upon the authority in 2 Salk. 688, inclined to think a will well attested where the testatrix could see the witnesses through the window of her carriage, and of the attorney's office. But the above cases turned upon the circumstance of the testator being in a situation which allowed of his sceing the witnesses sign; if, therefore, he be in a position in which he cannot see the signing, it seems such attestation would not be a compliance with the statute. Carth. 79; Holt's Rep. 222; 1 P. Wms. 239; 2 Show. 288. And in the case in Comyn's R. 531, it was determined that the question, whether present or not, was a fact for the consideration of the jury, upon all the circumstances of the case. See also, Stra. 1109. And if the jury find that the testator was in a situation where he could not see the witnesses, the will is not duly attested: 1 M. and S. 294; and if the testator were at the time of attestation insensible, though the witnesses signed in his presence, it is not a good attestation. Dougl. 241. It seems also to have been a question, whether the witnesses should not attest the will in the presence of each other. But it was determined, very soon after the statute, that though the witnesses must all see the testator sign, or acknowledge the signing, yet that they may do it at different times: Anon. 2 Ch. Ca. 109; Freem. 486; Cook v. Parson, Pre. Ch. 185; Jones . Lake, cited 2 Atk. 177; Bond r. Seawell, 3 Burr, R. 1773; and the acknowledgment by the testator to one of the witnesses, who did not see him sign, is good. See Addy v. Grix, 8 Ves. the safer way. (6) It has also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times. (s) But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument. (t) (7) And, in one case determined by the court of king's bench, (u) the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasers. and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney, whose very attendance made them creditors, or by the minister of the parish, who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if in such case the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II, c. 6, which restored both the competency and the credit of such legatees, by declaring void all legacies (8) given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the (8) Freem. 486. 2 Ch. Cas. 109. Pr. Ch. 185. (t)1 P. Wnis. 740. (u) Stra. 1253. 504; Ellis v. Smith, 1 id. 11. As to the attestation by a marksman, see Harrison v. Harrison, & id. 185. It is not necessary that the witnesses should in their attestation express that they subscribed their names in the presence of the testator, but whether they did or not so subscribe is a question for the jury. 4 Taunt. 217; Willes Rep. 1. Where there is a power to charge lands for the payment of debts, or for a provision for a wife or younger children, a court of equity will decree a will, though not executed according to the statute, a good execution of the power: Sch. and Lef. 60; 1 Duk. 165; and the defective execution of wills, in exercise of a power, is remedied by the 54 Geo. III, c. 68.] (6) The statute of wills, 1 Vic. 26, requires a will to be signed at the end of the instrument, and this is very generally required also by the statutes of wills in the United States. In the absence of such statutory provision, the writing of the testator's name in any part of the instrument by the testator himself, would be sufficient, if it satisfactorily appeared to have been done to give the instrument effect as a will, but not otherwise. Waller v. Waller, 1 Grat. 454. The signing of a will may be by the testator in person, or by some other person by his direction; but when by another, such person should attest the will as a witness, and in his attestation recite the mode of affixing the testator's name. McGee v. Porter, 14 Mo. 61. Signing by a mark is sufficient if the testator cannot write: Butler v. Benson, 1 Barb. 526; Upchurch v. Upchurch, 16 B. Monr. 102; Smith v. Dolby, 4 Harr. 350; and in some states it has been held sufficient whether he could write or not. St. Louis Hospital v. Williams's Administrator, 19 Mo. 609. See Ray v. Hill, 3 Strobh. 297. And in England it has been held that signing by initials -De Savory, 15 Jur. 1042-or by a fictitious name-Re Redding, 2 Rob. 339—was a sufficient signing. (7) The attestation should not only be in the bodily presence of the testator, but he should be in a conscious state, and able to observe what is being done, if disposed to do so. It is not absolutely necessary, however, that he be in the same room with the witnesses, if within sight. Dewey r. Dewey, 1 Met. 349; Watson v. Pipes, 32 Miss. 451; Wright v. Lewis, 5 Rich. 212. But if the testator was where he could not see the witnesses in the act of attestation, it is insufficient. Brooks v. Duffell, 23 Geo. 441; Boldry v. Parris, 2 Cush. 433. An attestation clause to a will is not essential, but it may nevertheless become very important in the event of the witnesses not recollecting the facts recited therein, as in that case the due execution of the will may be inferred from the recitals. See Hitch v. Wells, 10 Beav. 84 ; Lawyer v. Smith, 8 Mich. 411: Kirk v. Carr, 54 Penn. St. 285. (8) [This extends to devises of lands, and every interest given to the witnesses. But it has been held that a witness may be rendered competent to prove a will by a release, or the receipt of his legacy. 4 Burn. Ecc. Law, 97.] [*378] court and jury before whom such will shall be contested. And in a much later case (v) the testimony of three witnesses, who were creditors was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination were said to be insufficient. (9) Another inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, which affected the heir provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 and 4 W. and M. c. 14, hath provided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors only), be deemed to be fraudulent and void: and that such creditors may maintain their actions jointly against both the heir and the devisee. (10) A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject: with this difference, that in other conveyances the actual subscription of the witnesses is not required by law, (w) though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead; but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will. (x) (11) (v) M. 31 Geo. II. 4 Burr. 1, 430. (10) See pages 307, 308. (x) 1 P. Wms. 575. 11 Mod. 148. (9) [A person who signs his name as witness to a will, by this act of attestation solemnly tes tifies the sanity of the testator. Should such witness afterwards attempt to impeach his own act, and to prove that the testator did not know what he was doing when he made (what purported to be) his will; though such testimony will be far indeed from conclusive: Hudson's case, Skin. 70; Digg's case, cited, id.; and Lord Mansfield held, that a witness impeaching his own act, instead of finding credit, deserved the pillory: Walton v. Shelley, 1 T. R. 300; Lowe v., Jolliffe, 1 W. Bla. 366; S. C., 1 Dick. 389; Goodtitle v. Clayton, 4 Burr, 2225; yet, Lord Eldon held that the evidence of such parties was not to be entirely excluded: admitting, however, that it is to be received with the most scrupulous jealousy Bootle v. Blundell, 19 Ves. 504; Howard v. Braithwaite, 1 Ves. and Bea. 203. And Sir John Nicholl has laid it down as a distinct rule, that no fact stated by any witness open to such just suspicion, can be relied on, where he is not corroborated by other evidence. Kinleside v. Harrison, 2 Phillim. 499; and see Burrowes v. Lock, 10 Ves. 474. The statute 1 Vic. c. 26, repeals the act 25 Geo. II, c. 6 (except as it affects the colonies), and re-enacts and extends some of its provisions. It makes yoid devises and bequests, not only to an attesting witness, but to the husband or wife of such witness, and expressly provides that the incompetency of a witness, to be admitted to prove the execution of a will, shall not render it invalid. The statute further enacts that any creditor, or the wife or husband of any creditor, whose debt is charged upon the property devised or bequeathed by the will, may be admitted to prove the execution thereof as an attesting witness, and that an executor of a will may be admitted to prove its execution-a point on which some doubts had previously existed.] (10) Wills of both real and personal estate in the United States are made subject to the rights of creditors, as well by simple contract as by specialty, and, to the extent that it is necessary to appropriate the property to the satisfaction of their demands, the intended bounty is defeated And same is now true in England. See statutes 11 Geo. IV and 1 Wm. IV, c. 47; 3 and 4 id. c 104, and 2 and 3 Vic. c. 60. (11) [Lord Mansfield has declared, that this does not turn upon the construction of the statute 32 Hen. VIII, c. 1, (as some have supposed) which says, that any person having lands, &c., may devise for the same rule prevailed before the statute, where lands were devisable by custom. Cowp. 90. It has been determined, that where a testator has devised all his lands, or all the lands which he shall have at the time of his death; if he purchase freehold lands, and then make a codicil duly executed according to the statute, though no notice is taken of he after-purchased lands; yet if the codicil is annexed to, or confirms the will, or, as it seems, has a reference to it, this amounts to a republication of the will, and the after-pur Wherefore no after-purchased lands will pass under such devise, (y) unless, subsequent to the purchase or contract, (z) the devisor repubishes his will. (a) (12) [*379] We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. These are, 1. That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit. (b) For the maxims of law are, that "verba intentioni debent inservire;" and "benigne interpretamur chartas propter simplicitatem laicorum." And therefore the construction must also be reasonable, and agreeable to common understanding. (c) (13) 2. That quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est: (d) but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words: nam qui hæret in litera, hæres in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso. (e) And another maxim of the law is, that "mala grammatica non vitiat chartam;" neither false English nor bad Latin will destroy a deed. (f) Which perhaps a classical critic may think to be no unnecessary caution. 3. That the construction be made upon the entire deed, and not merely upon disjointed parts of it. "Nam ex antecedentibus et consequentibus fit optima interpretatio." (g) And therefore that every part of it be (if possible) made to take effect: and no word but what may operate in some shape [ *380 ) or other. (h) "Nam verba debent intelligi cum effectu, ut res magis valeat quam pereat." (i) (14) (y) Moor. 253. 11 Mod. 127. (z)1 Ch. Cas. 39. 2 Ch. Cas. 144. (a) Salk. 238. chased lands will pass under the general devise. Cowp. 158; Com. 383; 4 Bro. 2; 7 Ves. Jun. 98. But if the codicil refer expressly to the lands only devised by the will, then the afterpurchased lands will not pass under the general devise of the will. 7 T. R. 482. This also is a general rule, that if a man is seized of an estate in fee, and disposes of it by will, and afterwards makes a conveyance of the fee-simple, and takes back a new estate, this new estate will not pass by the will, for it is not the estate which the testator had at the time of publishing his will. Brydges v. Duchess of Chandos, Ves. Jun. 417. Equity admits no revocation which would not upon legal grounds be a revocation at law. There are three cases which are exceptions to this general rule, viz.: mortgages, which are revo cations pro tanto only, a conveyance for payments of debts, or a conveyance merely for the purpose of a partition of an estate. In the two first, a court of equity decrees the redemption, or the surplus, to that person who would have been entitled if such mortgage or conveyance had not existed, i e. the devisee. 2 Ves. Jun. 428. If an estate is modified in a different manner, as where a new interest is taken, from that in which it stood at the making of the will, it is a revocation. 3 Atk. 741. And equitable, being governed by the same rules as legal estates, if any new use be limited, or any alteration of the trusts upon which they were settled take place, a devise of them will be revoked. 2 Atk. 579. If A having devised lands to B, afterwards convey to him a less estate, as for years, to commence from the death of the devisor, this is a revocation of the devise to B; Cro. Jac. 49; but a grant only of an estate for years is not a revocation of a devise in fee. 2 Atk. 72. Or, if A after devising in fee, mortgage his lands or convey them in fee to trustees to pay debts, though this is a revocation at law, it is not so in equity, except pro tanto. 1 Vern. 329, 342; see also 3 Ves. Jun. 654.] (12) Under the recent wills act of 1 Vic. c, 26, after-acquired real estate may pass, and as to property of every kind, the will speaks and takes effect from the testator's death, unless restrained by the terms of a particular description. The last preceding note must be understood to apply exclusively to wills made before that act took effect. (13) See Parkhurst v. Smith, Willes, 332; Kane e. Hood, 13 Pick. 282; Ingalls v. Cole, 47 Me. 530: Bird v. Hamilton, Wal. Ch. 361; Long Island R. R. Co. v. Conklin, 32 Barb. 381; French v. Carhart, 1 N. Y. 96. (14) Duke of Northumberland v. Ewington, 5 T. R. 526; Folsom v. McDonough, 6 Cush. 208, Browning v. Wright, 2 B. and P. 13; Jackson v. Stevens, 16 Johns. 110; Babcock v. Wil |