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evidence has been admitted, where a party to the suit had no right to the possession of the will, and could not produce the original. Thus, in an avowry for a rent-charge, where the avowant claimed under a will, which he could not produce, as it belonged to the devisee of the land, the ordinary's register of the will and proof of former payments were held to be sufficient evidence against the plaintiff, who was the devisee of the land charged (i). In such a case, however, though the party cannot produce the will, he ought to give notice to the other party to produce it. (2)
The execution of a will is to be proved by the subscribing witnesses, if they are alive and can be produced. On a trial at common law, all the circumstances may be proved by a single witness; that is, upon the supposition, that there are two others who would be allowed to give the same testimony (3). If the opposite party disputes the regularity of the execution, he may call any of the other witnesses; but a devisee will not be obliged to call the rest, if one alone can prove all the requisites to establish the validity of the will. This is the rule in courts of common law. But on a bill filed in Chancery to establish a will, the rule is, that all the witnesses ought to be examined by the plaintiff. "It is the invariable practice in Chancery," said Lord Camden in the case of Hindson v. Kersey (4), "never to establish a will unless all the witnesses are examined, because the heir has a right to proof of sanity from every one of those, whom the statute has placed about his ancestor."
The facts, to be proved by the subscribing witness, are that the devisor signed the will, or that another person signed in bis presence, and by his express direction, and
(1) Anon, case, Rep. temp. Holt, (4) 4 Burn. EccL L. 93. Ogle v. 898. Ante, p.299. Cook, 1 Ve«. 177.; Townwad v. Ires,
(2) See »nte, p. 336. I WUs. 216. S. P.
(3) Per Lee C J.in Anstey v.Dowsing, 2 Stra. 1254. Bull N. P. 264.
that that the witness and two others attested and subscribed in knowledged it to be his hand-writing before witnesses, that was always considered to be evidence of the signing by the person executing, and a sufficient attestation by the subscribing witnesses (i); and the rule is precisely the same, where a note or declaration of trust, or any other instrument which requires a bare signing, is acknowledged before witnesses. From analogy to these cases, it has been determined in the case of wills, that the subscribing witness need not see the act of signing, but that it will be sufficient, if the testator has acknowledged to them, either to each separately or to all at the same time, that the will is his, or that the signature is his hand-writing (2). And the subscribing witnesses need not express in their attestation, that they subscribed their names in the presence of the testator; but whether they did so subscribe, is a question for the consideration of the jury, to be determined upon the evidence. (3)
the presence of the devisor.
First, as to the signing by the testator, it is not material Signing, in what part of the will he makes his signature. The statute prescribes no particular form, and does not require him to subscribe, but simply to sign. It was therefore determined, in a case soon after the passing of the statute, that, if the testator writes his name at the beginning or on the side, the signing is sufficient (1). But where a will consisted of several distinct sheets, some of which the testator signed, and intended to sign the rest, but was not able, Lord Mansfield thought this was not a signing of the whole will (2). According to Freeman's report of the case of Lemayne v. Stanley (3), the Court said, " It is not necessary to write, for some cannot write, and their mark is then a sufficient signing; others have their name on a stamp, and that is good enough." In that case also, three judges held, that if the testator had put his seal, that would have been of itself a sufficient signing within the statute; but Levinz J. doubted, on the authority of a case in Rolle's Abridgment, where the court held, that an award, which by the submission ought to have been signed by the arbitrator, was not good in law, because it had been only sealed. Lord Raymond ruled in a case (4) at nisi prius, and Lord Holt is also reported to have said (5), that sealing was a signing within the statute. But later authorities appear to have considerably shaken this doctrine (6); and now the established rule seems to b*, that sealing without signing is not a sufficient execution of the will. A bare sealing certainly cannot answer the
(1) Lemayne v. Stanley, 3 Lev. 1. (5) Lee v. Libb, 1 Show. 68.
Hilton v. King, 3 Lev. 86. jiVes.jun. (6) Smith v. Evan«, 1 Wils. 313., by
248. Parker C. B. and the two other Baroni
(a) Right dem. Cater v. Price, present: Grayson v. Atkinson, by Lord
I Doug. 141- Hardwicke, % Vet. 4J9.: Ellis v. Smith,
(3) P-5.'8. s*e also Hindson v. 1 Ves. jun. 11., by Parker C. B., Willes Kersey, 4 Burn. Eccl.L.92. S. P. per C. J., and Sir J. Strange. See also Pratt C.J. i7Vea,458.
(4) Warneford v. Warneford, 1Scra 764.
purposes which the legislature had in view; it cannot identify the instrument, nor does it bear, like writing, any peculiar character. "The statute," said Lord Hardwicke, in one of the cases upon this subject (i), "by requiring the will to be signed, undoubtedly meant some evidence to arise from the hand-writing; then, bow can it be said, that putting a seal to it would be a sufficient signing; for any one may put a seal; no particular evidence arises from sealing; common seals are alike; no certainty or guard arises from thence."
In a late case, where it appeared that the testator was blind, the court of Common Pleas determined that it was not necessary to read over the will, previous to the execution, in the presence of the attesting witness (2). "The statute of frauds," said Mr. Justice Heath on that occasion, "only requires that the testator shall execute the will in the presence of the attesting witnesses, and, in ordinary cases, when that is done, all is done that is necessary to be done. In the case of a blind man, stronger evidence would be required than the mere attestation of signature, but in this case there was that stronger evidence, which the peculiarity of the case seems to call for. In the course of the argument sufficient attention has not been paid to the distinction between what shall be deemed a literal compliance with the provisions of the statute, and what sufficient proof to rebut any imputation of fraud. The question of fraud is for the jury entirely, and here they found the will to be a valid will."
Attestation. The subscribing witnesses are to attest the signing; but the statute does not direct that they shall see the testator sign, or that he should sign in their presence. It requires only an attestation of the signing. Now, at the time of making that act of parliament, and ever since, if a bond or deed had been signed by the party, who afterwards ac
The statute requires the witnesses to attest the signing and to subscribe, but does not direct that they shall be all present at the same time: and although an attestation and subscription by all the witnesses at the same time would be the best security against fraud and imposition,, by making each a check upon the other, yet in the interpretation of the statute courts of law early determined, and it is now an established rule of property, that the witnesses may subscribe at several times (4). An attestation by a mark has been adjudged to be a sufficient subscription within the meaning of the statute. (5)
It is not necessary that the testator should declare the instrument, executed by him, to be his will, or that the
(1) 2 Ves. 457. (4) Cook v. Parsons, Prcc. in Chan.
(a) Stonehouse v. Evelyn, 3 P.Wmi. 185. Jones v. Lake, 2Atk. 177., in
OJ3- Grayson v. Atkinson, 2 Ves. 454 not. S. P., admitted in 2 Ves. 458., and
Ellis v. Smith, iVes.jun.i1. Addy in 1 Ves.jun. 14. v. Grix. 8 Ves.jun. 504. Westbeech v. (5) Harrison v. Harrison, 8 Ves.
Kennedy, 1 Ves. & Beam. 362. jun. 185. Addy v.Grix, ib. J04.
(3) Brice v. Smith, WilUs Rep. u 4 Taunt. 217.
witnesses witnesses should attest every page, or that every page should be particularly shewn to them(i). The whole will, however, ought to be present at the time of attestation; for if a. person makes a will on several pieces of paper, and there are three witnesses to the last paper, and none of them ever saw the will, this is not a sufficient execution (2). But unless there is positive proof that the entire will was not in the room, the question, whether it was so or not, is a question of fact, to be left with all the particular circumstances of the case to the consideration of the jury. (3)
The witnesses are to attest and subscribe in the presence of the testator; and as the object of this provision was to guard against fraud, and prevent the substitution of a false will in the place of the time one, the obvious meaning of the statute must be, that the testator should be in such a state of mind, and in such a situation, as to be capable of seeing the witnesses in the act of subscribing. It will not be a good execution, if the testator was in a state of insensibility (4), or if it was impossible for hhn to see the witnesses subscribe. "It is enough if the testator might see, it is not necessary, that he should actually see them signing: for at that rate if a man should turn his head back, or look off, that would vitiate the will (5)." But if the jury find the fact, that the testator might have seen what was passing at the time of the subscribing, then it will be presumed in favour of the attestation, that the testator actually saw what he might have seen. In one case, the testator was sick in bed, and the witnesses withdrew into a gallery, and there subscribed it, between which gallery and the bed-chamber (where the testator lay) there was a lobby with glass doors, and part of the glass was broken (6); in another case, the testator lay in bed in
(1) Bond v.Seawell, 3 Burr. 1773. (5) Per Cur. in Shires V. Glucock, (1) Per Cur. in Lea v. Libb, 3 Mod. 2 Salt 687. 261. 1 Eq. Cis. Ab. 403. S. P. (6) Sir G.Sheers's case,cited Caith.
(3) Bond v. Seawell, 3 Burr. 1773. 81.
(4) Cater v. Price, 1 Doug. 241.