figures, provided it be free from all doubt and ambiguity. 5. Thus where a will, in which legacies charged on lands, were written in figures, was scarcely legible; it was referred to a master to examine and see what never those legacies were; and he was directed to call to his assistance persons skilled in the art of writing. 6. A will may be written at several times, and on 1 Show. R. 66. several sheets of paper, unconnected with each other; although the proper mode, where a will is written on several sheets of paper, is, to join them together by means of a piece of tape sealed. 7. The next circumstance necessary to the validity Signing. of a devise of lands is, that it be signed by the devisor, or by some other person, in his presence, and by his direction. The latter part of this clause was inserted for the benefit of those persons who, from sickness or some other misfortune, should be incapable of writing their names, or making their marks. And where a will is written on several sheets of paper, it is the usual practice for the testator to sign each page. 8. The framers of the statute of frauds chose sign- Gilb, R. 261. ing, rather than sealing and delivery, the solemnities required in deeds, because seals, though formerly a great mark of distinction in families, were much disused when this statute was made, and people sealed with any seal; so that signing, as used in the Roman law, was preferred. 9. If the testator's name be written by himself in any part of a will, either at the beginning or at the end, it will be considered as a sufficient signing within the statute. v. Stanley, 3 Lev. 1. 10. A person wrote his will with his own hand, Lemayne, beginning thus, "I John Stanley make this my last will and testament;" and put his seal, but did not subscribe his name to it. This was adjudged to be a good will; for being written by himself, and his name in the will, it was a sufficient signing within the statute; Warneford Smith v. Evans, 1 Wils, R. 313. 2 Ves. 459. 1 Ves. Jun. 13. 17 Id. 459. Right v. which did not appoint where the will should be signed, at the top, bottom, or margin; and therefore a signing in any part was sufficient. And three of the Judges were of opinion that the putting his seal had, of itself, been a sufficient signing within the statute of frauds; for signum was no more than a mark that it was his will. 11. The position laid down in the preceding case, that sealing a will is a sufficient signing within the statute of frauds, is very doubtful for although Sir J. Strange reports, that in 13 Geo. I., on an issue directed out of Chancery, of devisavit vel non, the Chief Justice ruled, that sealing a will was a signing within the statute of frauds; yet in a subsequent case, 25 Geo, II., it was said by Lord Ch. B. Parker, Baron Clive, and Baron Smythe (absente Legge), that the opinion advanced in 3 Lev. 1., that sealing was a sufficient signing, was a strange doctrine; for if it were so, it would be very easy for a person to forge any man's will, by only forging the names of any three obscure persons, as there would be no occasion to forge the testator's name: and the Barons said, if the same should come in question again, they should not hold that sealing a will only, was a sufficient signing within the statute. 12. The want of signing all the sheets of a will cannot be supplied; so that although the devisor should intend to sign the remaining sheets, but becomes incapable of doing it by sickness, such an execution will not be deemed sufficient. of 13. A will was prepared and written on five sheets paper, and a seal affixed to the last, and also the form and attestation written on it. The will was then read over to the testator in the presence of three witnesses, who afterwards subscribed, and the testator set his mark to the first two sheets in their presence, and attempted to set it to the third; but being unable, from the weakness of his hand, he said, "I cannot do it, but it is my will." After this the three witnesses went away, being desired to come again. The testator died without setting his mark to the last three sheets. Lord Mansfield said, the will was not duly executed; for when the testator signed the first two sheets, he had an intention of signing the other sheets, but was not able; he therefore did not mean the signature of the first two sheets as a signature of the whole will: there never was a signing of the whole. The Court, to be. sure, 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; but here there was no room for presumption. Adjudged that the will was not duly executed. witnesses. 14. The third circumstance required by the statute Attestation by of frauds to the validity of a devise is, that it should be attested and subscribed, in the presence of the testator, by three or four witnesses. In this instance the statute adopts the mode prescribed by the civil law, in testamentis solemnibus, not as laid down in Justinian's Insti- Gilb. R. 261. tutes, but as reformed by the code in the novels; and the evil meant to be remedied by the makers of the statute of frauds was, the secret and private manner in which wills were formerly executed. 15. Where the testator owns his handwriting before the witnesses, it is sufficient, though they do not see him sign his name. 16. Thus in proving a devise of lands in the Court of Chancery, the evidence was full that the three witnesses did subscribe their names in the presence of the testatrix; one of them however said he did not see the testatrix sign, but that she owned, at the time when the witnesses subscribed, that the name signed to the will was her own handwriting; which Sir J. Jekyll held, without all doubt, to be sufficient. 17. On a bill to establish a will against an heir at law, he by his answer made a doubt, whether, as all the witnesses did not see the testator sign, this was a good attestation within the statute. E Stonehouse v. Evelyn, Grayson v. Atkinson, 2 Ves. 254. Ante, § 10. Ellis v. Smith, 1 Ves. Jun. 10. Lord Hardwicke.-" This has been vexata questio a great while; whether to make a will effectual, according to the statute, the signing of the testator thereto should be in the presence of all, or indeed of any of the witnesses; or whether the testator's acknowledging the handwriting to that will to be his, is not sufficient. It is insisted that the word attested, superadded to subscribed, imports they shall be witnesses to the very act and factum of signing; and that the testator's acknowledging that act to have been done by him, and that it is his handwriting, is not sufficient to enable them to attest; that is, it must be an attestation of the thing itself, not of the acknowledgment. To be sure it must be an attestation of the thing in some sense; but the question is, if they attest upon the acknowledgment of the testator that it is his handwriting, whether that is not an attestation of the act; and whether it is not to be construed as agreeable to the rules of law and evidence, as all other attestation and signing might be proved. At the time of making the act of Parliament, and ever since, if a bond or deed is executed by the person who signs it, afterwards the witnesses are called in, and before those witnesses he acknowledges it to be his hand; that is always considered to be a signing by the person executing, and is an attestation of it by them. The case of Lemayne v. Stanley is an express authority, and must have been by an acknowledgment of the testator's hand: no answer can be given to it, but a presumption that the testator might write the will in the presence of the three witnesses; but this is not a natural presumption; for if the fact were so, it would have been found by the jury, as it would have put it out of all doubt. Therefore, on the penning of the act, and the authorities, my opinion is, that this will is well executed; but being a question of law, if the heir insists on having it tried, I will direct a trial." A trial was accordingly directed. 18. The doctrine here laid down was soon after fully confirmed by a determination of Lord Hardwicke, assisted by Sir John Strange, Lord Ch. J. Willes, and Lord Ch. B. Parker, in which it was unanimously resolved, that the declaration of a testator, before three witnesses, that a paper was his will, was equivalent to signing it before them, and constituted a good will within the 5th section of the statute of frauds. 1 Ves. & Harrison v. Harrison, Ves. Jun. 19. It has been determined in a late case, that an attestation of a devise, by the witnesses setting their marks to the will, was good within the statute of frauds. 185. Id. 504. 20. It has also been determined, that it is not neces- Longchamp v. Fish, 2 Bos. & sary to the validity of the execution of a will of lands Pull. N. R. by a blind man, that it should be read over to him in 415, the presence of the attesting witnesses. see the whole 21. The witnesses ought to see the whole will, for if who ought to they only see the last sheet, on which they subscribe will., their names, it is doubtful whether that be sufficient. The presumption however is, that all the sheets on which a will is written are in the room where the witnesses attest, unless the contrary be proved. Scawell, 22. Sir T. Chitty made his will, consisting of two Bond v. sheets of paper, all in his own handwriting, and signed 3 Bur. 1773. his name at the bottom of each page. The sentences 1 Black. R. 407. and words were so connected from the bottom of each page to the top of the next, and particularly from the fourth side of the first sheet to the first side of the second sheet, that they were imperfect and nonsensical if read apart, but clear and intelligible when read together. He also made a codicil in like manner on a single sheet. The testator then called in Francis Harding, showed him both sheets of the will, and his signature to every page, told him that was his will, and also showed him the codicil, and desired him to attest both, which he did on the last sheet of the will, and on the codicil, in the presence of the testator, and then left the John Vaughan and John Leyland came in immediately afterwards; the testator showed them the codicil, and the last sheet of the will, and sealed them |