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ence is supported by two late cases (i), in which a signature in an entry, purporting to have been made by a person long since deceased, was allowed to be compared with another signature of the same person in a deed of settlement, and this evidence by comparison was admitted, on the ground, that at such a distance of time no better evidence of the fact could be obtained. *
In a case, where the question was, whether a will had been forged, a clerk of the general post office, who had been regularly employed to inspect franks and detect forgeries, was admitted by the court of King's Bench, on a trial at bar, to speak to the general appearance of the handwriting of the will, and to give his opinion, whether it was written in a natural or imitated character (2). The judges considered it entirely a question of art, which might be answered by a witness of skill and experience. The witness, however, in his examination, admitted that he had never detected an imitation of the hand-writing of an old person, who wrote with difficulty, and might be supposed frequently to stop; and that they judged principally by seeing, whether the letters were what they called painted, or passed over by the pen a second time, which might happen to any person from a failure of ink. In the same case, after the witness had proved that the will was not genuine, he was shewn a paper admitted to have been written by a
(1) Brune v. Rawlins, 7 Eatt, tZx. (1) Revet v. Braham. 4 T. R. 497. n. (a), ruled by Le Blanc J ; Moiewood r. Wood, 14 East, 3x8. S. V.
* In an earlier case, before Mr. Justice Yates, this kind of evidence was rejected. The plaintiff in that case, in support of a modus, produced a paper containing a particular of tithes, and said to be the hand-writing of the deceased rector. In order to prove that this was the writing of the rector, whose name it bore, the plaintiff's counsel offered to produce several returns of births and burials in the parish, purporting to have been made and signed by the same rector; and on comparing the signature on the returns with that on the paper, the hand-writing, it was said, would appear to be by the same person. But Mr. Justice Yates rejected the evidence. Brookbard v. Woodley, Appendix to Via. Ab, vol. iv. 167. Peake, N.P.C.ao. S.C.
B b 3 person person suspected of forging the will, and was then asked, whether in his opinion that paper and the will had been •written by the same person. The question was objected to, but admitted by the court; yet this was evidently a mere comparison of hand-writing, and a sort of comparison the least of all to be trusted, as it was an attempt to trace a resemblance between two papers, which the writer would endeavour to make as unlike as possible. This subject was much discussed in the case of the King v. Cator (i), tried before Mr. Baron Hotham, from which case this distinction may properly be made, namely, that persons of skill may be called to ascertain whether hand-writing is genuine, or whether it was written at interrupted strokes, like the writing of a person attempting to imitate the hand of another; but that they cannot be asked, whether the same hand, which wrote another paper, wrote also the feigned paper.
By the statute of frauds (2), " all devisees of lands or tenements devisable by that statute, or by the statute of wills (3)*, or by force of any particular custom, are required
(1) 4 Esp. N. P. C. 11;. M5. (3) St. 31H. 8. c. 1., eiplained by
(2) St. 19 c. s. c. 3. 2.5. St. 34 H. 8. t. 5.
• The statutes of the 31d and 34th of Henry VIIL gave the power of devising to such persons only as held by socage, and had an estate of inheritance in feesimple. But copyholds, not being 11 eld by socage tenure, cannot be devised under these statutes, nor arc they made devisable by any clause in the statute of fuuds; and they are considered to be in their nature not properly the subject of * device, for they do not pass by a will merely as a will, but by will and suirender taken together. The practice is to surrender to the use of the owner's last will, and on this surrender the will operates as a declaration of the use, and not as a devise of the land itself. A devise therefore of copyhold lands, or of customary lands which pass by surrender and admittance, does not require any attestation; nor quired to be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express direction, and to be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void, and of no effect."
This clause describes the solemnities, which ought to attend the execution, and particularly adverts to the character of the witnesses and the situation of the devisor at the moment, when the act of attestation is performed. "That the statute had a main view to the quality of the witnesses," said Lord Camden in the case of Hindson v. Kersey, " will appear from this consideration, namely, that a will is the only instrument in it required to be attested by subscribing witnesses at the time of execution; while leases, marriage agreements, declarations, aud assignments of trusts, were only required to be in writing and signed. These are transactions of health, and protected by valuable considerations, and antecedent treaties; but a will is often executed suddenly in a last sickness, and sometimes in the article of death; and the great question to be asked in such cases is, whether the testator was in his senses when he made the will? and consequently the time of the execution is the critical moment, which requires guard and protection. What is the employment of the witnesses? It is to inspect and judge of the testator's sanity before they attest, and, if he is not capable, they ought to refuse to attest. In other cases, the witnesses are passive, here they are active, and in truth the principal parties to the transaction. The testator is entrusted to their care (i) *." According to this
reasoned Hindson v. Kersey, 4 Burn. EceL L. 88.
will it require a signature, unlets a signature is made necessary by the terms of the surrender to the use of the will, Wagstaft v. Wagstaff, 2 P. Wms. 158. Tuffnell r. t'age, 2 Atk. 37. Carey v. Askew, 2 Bro. Ch. Rep.58. Do* dem. Cook v. Danvers, 7 East, 299. 322.
• There has been a difference of opinion respecting the meaning of the term "credible," in the nfih section of the statute of frauds. Lord Mansfield thought it inaccurate, and that it had slipped into the statute as a word of coarse j sod that
B b 4 the reasoning, the credibility or competency of the witnesses (for the term "credible" is to be construed in this passage as synonimous with "competent,") must be considered with reference to the time of attestation; so that, if one of three attesting witnesses would have been incompetent to give evidence at the time of his subscribing, (as from want of reason, or from conviction of some infamous offence (i),) the will is not duly executed within the statute of frauds. Upon this principle it was determined, soon after the passing of the statute, that a devisee could not attest a will, under which he took an interest (2). But considerable doubts were afterwards entertained, whether the competency of such an interested person might not be restored by a release, payment, or extinguishment of all his interest, so as to admit him to prove the execution (3). In consequence of this difference of opinion, the legislature passed an act, which, (after reciting, that it had been doubted, who were to be deemed legal witnesses within the statute of frauds,) enacts (4), that "if any person shall attest the execution "of any will or codicil, (to whom any beneficial devise, "legacy, estate, interest, gift, or appointment affecting any "real or personal estate, except charges on land, &c. for "payment of debts, shall be given,) such devise, legacy, &c. "shall, so far only as concerns such person attesting the
(1) Pendork t. Mackinder, Willes' (3) See on this subject Anstey v. Rep. 665. Dowsing, a Stra. 1153. Wyndham v.
(i) Hilliard v. Jennings,I Ld. Raym. Chetwynd, I Burr. 414. Hindson w. 505. Com. Rep. 91. S. C. Kersey, 4 Burn. Eccl. L. 88.
(4) ScajG.s. c.6. a. 1, 2. 6.
the witnesses need not be competent, as that word is understood in law, at the time of the execution. "If all the witnesses," said Lord Mansfield, " swear that the testator did not execute, if they had at the time the worst characters, and had committed the most infamous actions, yet their attestation answers the necessary form, because the testator meant to comply with the law, and might not know them to be bad men. Objections to the sufficiency of the subscribing witne!ses," .he added, " should be left to be judged of, as cases arise, by general principles, by analogy to the law of witnesses in other instances, and by arguments drawn from the nature and fitness of the thing with regard to justice, convenience, and the intent of the statute.", Wyndham v. Chetwynd, 1 Burr. 418, 419.
« execu"execution, or any person claiming under him, be utterly 44 null and void; and such person shall be admitted as a "witness to the execution of such will or codicil, within "the intent of the said act, notwithstanding such devise, "legacy, &c. And in case any will or codicil fhall be "charged with any debt, and any creditor, whose debt is "so charged, shall attest the execution of such will "codicil, every such creditor, notwithstanding such charge, "shall be admitted as a witness to the execution of such "will or codicil, within the intent of the said act: Pro"vided always, that the credit of every such witness so "attesting the execution of any will or codicil in any of"the cases within this act, and all circumstances relating "thereto, shall be subject to the consideration and deter"inination of the court and the jury, before whom any "such witness shall be examined, or his testimony or at"testation made use of, in like manner, as the credit of "witnesses in all other cases ought to be considered and "determined." It had been determined, long before this act, that an executor, who took nothing under the will, and had no interest in the surplus, was a competent witness to prove the will in a cause concerning the estate, (1)
The best proof of the contents of a will is the original will itself. An exemplification under the great seal is not evidence in an action of ejectment (2); nor is the probate of a will in the spiritual court any proof of a devise of real property (3), even where the original is lost (4), for that court has no power to grant a probate of such devises, or to authenticate them on its rolls. But, where the contents of a will are given in evidence, not to establish a devise, but. merely for the purpose of proving a pedigree stated in the will, the rolls of the spiritual court, which has authority to enrol, have been thought admissible (5). And similar
(1) Anon case, 1 Mod. 107.; and (3) See ante, p. 199. see Bettiton v. Sir R. Bromley, i1 East, (4) 1 Ld. Raym. 731. See St. Legar 150, where the case: are. collected l v. Adams, I Ld. Raym. 731; Skinner, and-supra, p. 40. 174.
(a) Comlierb. 46. (5) Bee ante, p. 299.