in their presence; took each of them up, and severally delivered them as his act and deed. These witnesses then attested the same in the testator's presence, but never saw the first sheet of the will, nor was it produced to them, nor was the same or any other paper on the table. After the testator's death both sheets of paper were found in his bureau, not pinned together, but wrapped up together with the codicil in one piece of paper. The question was, whether the will was duly attested, according to the statute of frauds. The case was several times argued before all the Judges in the Exchequer Chamber; and Lord Mansfield acquainted the bar, that there had been a conference among all the Judges, except Mr. Baron Adams, who was out of town, upon this case, which was an amicable suit, to try the real merits of the question. It occurred to the Judges, that the way in which the parties had put the case did not go to the whole merits, because if the first sheet was in the room at the time when the latter sheet was executed and attested, there would remain no doubt of its being a good will, and a good attestation of the whole will; but if the first sheet was not then in the room, a doubt might arise whether it was, or was not, a good attestation, as to the real estate. However, no opinion was given or formed by the Judges upon such doubt which might so arise, if it should appear that in fact the first sheet was not then in the room. A will properly attested might, by reference to another instrument, establish particular clauses, so ascertained by a clear reference, as strongly as if the clauses so referred to had been repeated in the will verbatim; and there were references in this will from one part to another. Every presumption ought to be made by a jury in favour of such a will, when there was no doubt of the testator's intention. It was not necessary that the witnesses should attest in the presence of each other, or that the testator should declare the instrument he executed to be his will; or that the wit nesses should attest every page, folio, or sheet; or that they should know the contents; or that each folio, page, or sheet should be particularly shown to them. This had been settled: but the fact whether the first sheet of the will was or was not in the room, at the time of the executing and attesting the latter, might be material to be known; if it was, the jury ought to find for the will generally; and they ought to find all things favourable to the will. If it was doubtful whether the first sheet was then in the room or not, they all thought the circumstances sufficient to presume that it was in the room, and that the jury ought to be so directed: but upon a special verdict nothing could be presumed; therefore they were all of opinion that it ought to be tried over again; and if the jury should be of opinion that it was then in the room, they ought to find for the will generally; and they ought to presume, from the circumstances proved, that the will was in the room. test in the presence of the 23. The statute expressly requires that the witnesses And must atshould attest and subscribe the will in the presence of the testator, lest another will should be substituted instead of the real one. 24. Thus where a person subscribed his will in the presence of three witnesses, who, for the ease of the testator, went down into another room, and subscribed it there, it was held to be void. 25. But if there be a possibility of the testator's seeing the witness attest, it will be sufficient, unless the contrary is proved. 26. A testator desired the witnesses to go into another room, seven yards distant, to attest his will, in which there was a window broken, through which the testator might see them: and it was held that this will was well attested, according to the statute; for it was sufficient that the testator might see the witnesses, and not necessary that he should actually see them; for in that case, if a man should turn his back, or look testator. Lord Rancliffe Broderick v. Broderick, Shires v. Glascock, 507. d. Raym. Longford v. Eyre, another way, it would vitiate the will. So if the testator, being sick, should be in bed with the curtains closed. 27. There were four witnesses to a will, one of whom 1P. Wms. 740. Was gone beyond sea; two of them swore that they saw the will executed by the testatrix, and that they subscribed the same in her presence: the third swore that he subscribed the will as a witness in the same room, and at the request of the testatrix. Lord Cowper doubted as to the proof of the execution of the will; and the matter coming on again before Lord Macclesfield, he observed, 1. That the proper way of examining a witness to prove a will of land was, that the witness should not only prove the execution of the will by the testator, and his own subscribing it, but likewise that the rest of the witnesses subscribed their names in the presence of the testator; and then one witness proves the full execution of the will, since he proves that the testator executed it, and also that the three witnesses subscribed it in his presence. 11. He held that the bare subscribing of the 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 witnesses in the testator's presence, merely because in the same room. But 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 therefore the will was well executed. 28. A married woman having a power to make a writing in the nature of a will, ordered a will to be prepared, and went to an attorney's office to execute it; but being asthmatic, and the office very hot, she retired to her carriage, to execute the will, the witnesses attending her; who, after having seen her execute it, returned into the office to attest it, and the carriage was put back to the window of the office, through which, it was sworn by a person who was in the car- 29. Although the witnesses to a will must subscribe it in the presence of the testator, yet the statute of frauds does not require that this circumstance should be taken notice of in the attestation; and whether inserted or not, the fact, if denied, must be left to the jury; for neither the insertion nor omission of this circumstance is conclusive. James, Willes R. 1. S. P. 30. In ejectment by an heir at law, the question for Hands v. the opinion of the Court was, if it should be left to a Com. R. 530. jury to determine, whether the witnesses to a will, being all dead, set their names in the presence of the testator; and this merely upon circumstances, without any positive proof. The Court said, this was a matter fit to be left to a jury. The witnesses, by the statute of frauds, ought to set their names as witnesses in the presence of the testatrix; but it was not required by the statute that this should be taken notice of in the subscription to the will; and whether inserted or not, it must be proved; if inserted it did not conclude, but it might be proved contra, and the verdict might find it contra. Then, if not conclusive when inserted, the omission did not conclude it was not so; and therefore must be proved by the best proof which the nature of the thing would admit of. In case the witnesses were dead, there could not probably be any express proof, since, at the execution of wills, few were present but the devisor and the witnesses. Then, as in other cases, the proof must be circumstantial; and here were circumstances. 1. Three witnesses had set their names, and it must be intended that they did it regularly. 1. One witness was an attorney of good character, and might be presumed to understand what ought to be Croft v. 2 Stra. 1109. But may attest at different times. Anon. 2 Cha. Cook v. Parsons, 184. done, rather than the contrary; and there might be circumstances to induce a jury to believe that the witnesses set their hands in the presence of the testatrix, rather than the contrary; and it being a matter of fact, was proper to be left to them. The plaintiff was nonsuited. 31. The same question arose in a subsequent case, on a trial at bar in ejectment. The defendant made title under a will, the attestation of which was in these words, " Signed, sealed, published, and declared as and for his last will in the presence of us, A. B. and C." The witnesses were all dead, and their hands proved in common form. It was objected that this was not an execution, according to the statute of frauds; and the hands of the witnesses could only stand as to the facts they had subscribed to; and signing in the presence of the testator was not one. The Court, on the authority of Hands v. James, said, it was evidence to be left to a jury of a compliance with all the circumstances. A verdict was given for the will. 32. By the Roman law, it was necessary that all the witnesses should be present at the same time; and some doubts were formerly entertained whether the same circumstance was not required by the statute of frauds; but it is now fully settled, that although the witnesses attest at different times, yet it is sufficient. 33. A will of lands attested by three witnesses, who at several times subscribed their names, at the request of the testator, but were not present at once together, was decreed to be well attested, within the statute. 34. On a bill of review to reverse a decree of Lord Prec. in Cha. Nottingham, for sale of lands, subjected by a will to the payment of debts. The will was written in the testator's own hand, and published in the presence of three several witnesses, at three several times, and they all attested it in his presence. One of the objections to the decree was, that it was no good will within the statute of frauds, because not attested by all the wit |