nesses at one time. Lord Keeper Wright held a publication of a will before three witnesses, though at three several times, good within the statute. 2 Atk. 176. n. 35. In ejectment a special verdict was found, that Jones v. Lake, a testator executed his will in the presence of two witnesses, who attested the same in his presence; that four years after the testator went over his name with a pen in the presence of a third witness, who subscribed his name in his presence, and at his request. Mr. Henley argued for the heir at law, that the statute requiring three witnesses to subscribe in the testator's presence, must intend they should be all present together, else there was not that degree of evidence which the statute required; for an attestation of three witnesses, at different times, had only the weight of one witness. Witnesses to a will not only attest the due execution of it, but likewise the capacity of the testator at the time of execution. A man might be sane at the time when two of the witnesses attest, and insane when the third attests. It could not be considered as a will till the third witness had signed it, for that completed the act. Mr. Banks argued, on behalf of the devisee, that a will executed in the presence of three witnesses, though they attested it at different times, was good, within the statute of frauds; because that statute did not require that all the witnesses should be present at the same time. The requisites under the statute were, that the testator should sign, in the presence of three witnesses at least, and that they should attest in his presence. It would therefore be adding new requisites, which the act did not mention, and in fact making a new law Lord Ch. J. Lee." This case depends on the words of the statute; the requisites in the statute are, that the three witnesses should attest the signing of the testator; but it does not direct that the three witnesses should be all present at the same time. There has Ante, 34. Westbuch 1 Ves. & B. Vide 1 Ves. Wills and codicils need not be sepa been no determination as to this point. In the case of Cook v. Parsons, the testator's signing was held good, though it was not before three witnesses at the same time; and the Court only doubted whether the testator's barely owning the subscription to be his, before one of the witnesses, was good; but there was no doubt as to the validity of the will, from the execution at different times. Here you have the oaths of three attesting witnesses; this is the degree of evidence required by the statute; and the same credit is given to three persons, at three different times, as at the same time. We cannot carry the requisites further than the statute directs; the act is silent as to this particular; it would therefore be making a new requisite. The signing is the same act reiterated; the testator in the principal case went over his name again, and declared it to be his last will." Judgment against the heir at law. 36. It was formerly held that every will and every codicil must be separately attested by three witnesses; rately attested. for the attestation of two witnesses to a will, and of a third witness to a codicil annexed to such will, was held insufficient; nor could the attestation of a codicil operate in any case as the attestation of a will, to which it was declared to be annexed. Lea v. Libb, 37. A person made his will in writing, by which he devised lands, and sealed and published it in the presence of two witnesses only, who subscribed it in his presence. A year after, he caused another writing to be prepared, which recited that he had made his will, and confirmed it in all things; and said, "and my will is, that this codicil be taken to be of force, and part of my will." It was found that the codicil was attested by two witnesses, one of whom was witness to the will, the other not; and it was further found, that the codicil was distinct from, and not annexed to the will. Lord Ch. J. Holt delivered the opinion of the Court, that this was not a good will within the statute, for want of three attesting witnesses. The codicil would not carry the land without the will, nor the will without the codicil. And the three witnesses within the statute ought to be witnesses to the whole. v. Barnes, Prec. in Cha, 38. A person devised freehold lands to a college, by Att. Gen. a will written with his own hand, but not attested by Gilb. R. 5. any witness. The testator afterwards made a codicil, attested by four witnesses, wherein he recited his will. It was determined that the attestation of the codicil could not operate so as to render the will valid; for the codicil might be executed in another place, and the witnesses might not either see or know any thing of the will. 1775. 39. The doctrine laid down in the above case, appears doubtful, for in Habergham v. Vincent, which will be stated hereafter, Mr. J. Wilson, whom Lord Loughborough called to his assistance, is reported to have said "I believe it is true, and I have found no 2 Ves. Jun. case to the contrary, that if a testator in his will refers 228. expressly to any paper already written, and has so 3 Bur. R. described it, that there can be no doubt of the identity, and the will is executed in the presence of three witnesses, that paper makes part of the will, whether executed or not; and such reference is the same as if he had incorporated it; because words of relation have a stronger operation than any other. As Lord Coke says, in his comment on Littleton, where Littleton is speaking of the word heirs being necessary to raise an estate of inheritance, Lord Coke makes this exception; if A. enfeoff B. and his heirs, and B. enfeoffs A. in as full and ample a manner as A. has enfeoffed him, that will give the inheritance, without the word heirs; and it shall have effect by relation." 40. Where a codicil is written on the same sheet of paper with a will, the attestation of the codicil by three witnesses establishes the will, though such will be not duly attested, De Bathe v. Fingall, 16 Ves. 167. 1 Ves. & Bea, 445. Carlton v. 1 Bur. 549. 41. Sir James de Bathe by his will, attested by only one witness, appointed Lord Fingall and Mr. Cruise to be guardians to his children. By a codicil written on the same sheet of paper, the testator expressed himself in the following manner:-"I do hereby make and declare this to be a codicil to my will hereunto annexed, in which said will I am disposed to make some alterations." He then made alterations as to legacies, and concluded thus: " and in all other respects confirm my said will hereunto annexed." The codicil was attested by three witnesses. Mr. Alexander contended, on behalf of the guardians, that this appointment was clearly sufficient. The effect of a codicil, on the same sheet of paper with the will, expressly referring to it, as annexed, and confirming it in all respects, except as to the alteration of some legacies, being a re-execution and re-publication, as it would be in the case of a devise of land, there being no difference in this respect between the two statutes. Sir W. Grant, M. R. held clearly that the appointment of guardians was good; the codicil, attested by three witnesses, adopting the will, and amounting to a re-execution and republication; and a devise of land by the will would have been made good by the codicil. 42. If a will be made at several times, although the parts be distinct, and separately signed by the testator; yet if it appear from circumstances to have been the intention of the testator that both instruments should constitute but one will, and not a will and a codicil, an attestation of the last part by three witnesses will amount to an attestation of the whole. 43. J. Griffin, on the 2d May, 1752, wrote upon a sheet of paper, with his own hand, as follows:-" Know all men by these presents, that I John Griffin make the aforementioned my last will and testament." He then proceeded to give two freehold houses, and subscribed it; but there was no witness. In January 1754.he wrote on the same sheet of paper the following words: "Memorandum, whereas I have laid out, &c. on a lighter, &c. and the barge called The Lemon, &c. all shall be at my wife's disposal; and this not to disannul any of the former part made by me, the 2d May 1752, except that my wife shall not be liable to pay to my son John, &c. Witness my hand, John Griffin." The will was written on the first and second sides of a sheet of paper, and the memorandum was begun either upon the end of the second, or the beginning of the third, and written upon the third side; and all the second writing related only to the personal estate. The testator subscribed this in the presence of three witnesses; then he took the said sheet of paper in his hand, and declared it to be his last will and testament, in the presence of the said three witnesses; and then delivered it to them, and desired they would attest and subscribe it in his presence, which they accordingly did. The question was, whether this will was duly attested according to the statute of frauds. Lord Mansfield said, the case was accurately put; for it was not stated to be either a will or a codicil, but a sheet of paper written, &c. At first, in 1752, the testator did not know that any witnesses were necessary; in 1754 he had found they were necessary; then he made a subsequent disposition, which was a memorandum to be added to it; but he did not call it a codicil, nor did the case state it to be so. He plainly considered the whole as one entire disposition, and he expressly declared in the latter, that he did not thereby mean to disannul any part of the former devise or dispositions. There is not a tittle in the latter that relates to the real estate; therefore the only intent of having the three witnesses was, and must be, to authenticate the former. Then the publication of it was, as of a will; he took up the sheet of paper and said, it is my will; and certainly he did not mean a part only, but the whole of it; and he desired them to attest it: all this must relate to the |