else they shall be utterly void and of none effect." This section is still in force as to wills made before Jan. 1st, 1838.

By the Wills Act (1 Vict. c. 26), s. 9, 66 'no will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned (that is to say), it shall be signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.' By sect. 13, " every will executed in manner herein before required shall be valid without any other publication thereof." This Act, by sects. 1, 34, applies to any will, codicil or appointment in exercise of a power made or re-executed, or re-published or revived by any codicil on or after Jan. 1st, 1838.

The signing required by sect. 9 is to be "at the foot or end" of the will. As this provision gave occasion to some very inconvenient decisions upon the precise situation of the signature, it was enacted, by 15 & 16 Vict. c. 24, s. 1, that the will shall be valid if the signature be so placed at, or after, or following, or under, or beside, or opposite to the end of the will that it shall be apparent that the testator intended to give assent by such signature to the writing signed as his will. But no signature under the Act is to give effect to any disposition which is underneath it, or follows it, or is written after the signature shall be made.

By sect. 2, these provisions extend to every will already made, where administration or probate has not already been granted, or where the property has not been possessed or enjoyed by some person, or the right thereto has not been decided to be in some other person than the persons claiming under the will in consequence of the defective execution of such will.

The following decisions under the Stat. of Frauds, s. 5, ante, p. 143, are retained, as being often applicable to the proof of wills made since the Wills Act. Most of the decisions under the Wills Act are collected post, p. 146.

Signing.] Notwithstanding some earlier cases to the contrary, it is now the better opinion that sealing, without signing, is not a sufficient execution within the Stat. of Frauds. Smith v. Evans, 1 Wils. 313; Wright v. Wakeford, 17 Ves. 458. It is sufficient under that statute, if the testator sign his name at the beginning of the will. Lemayne v. Stanley, 3 Lev. 1; S. C. Freem. 538. If the will be written on several sheets, and the testator signs some and intends to sign the rest, but does not, this is not a sufficient execution; Right v. Price, 1 Doug. 241; Sweetland v. Sweetland, 4 Sw. & Tr. 6; 34 L. J., P. M. & A. 42; but where a will, written on three sides of a sheet of paper, concluded by stating that the testator had signed his name to the first two sides and had put his hand and seal to the last, and in fact he had put his hand and seal to the last, but had omitted to sign the two other sides, the execution was held good, the signing of the last sheet showing that the former intention had been abandoned. Winsor v. Pratt, 2 B. & B. 650.

Where a codicil was duly executed and attested by three witnesses and written on the same paper with an unexecuted will to which it expressly referred: it was held, that such execution gave effect to the will, and that it thereby became a good will of lands. Doe d. Williams v. Evans, 1 Cr. & M. 42; S. C., 3 Tyr. 56. So, a codicil whereby the testator confirms his will, gives validity to an unattested alteration in a devise made after the execution of the will; Tyler v. Merchant Taylors' Co., 15 P. D. 216; and to a testamentary paper purporting to be a

devise unattested and unannexed to the will, if distinctly referred to by such codicil. 1 Wms. Exors., 8th ed., pp. 98, 215. See Bilke v. Roper, 45 Ch. D. 632. The existence and identity of such paper must be proved by parol evidence. In re Heathcote, 6 P. D. 30. But a codicil may operate as a partial republication only. Monypenny v. Bristow, 2 Russ. & Myl. 117. Where the testator is blind, it is not necessary to read over to him the will in the presence of the attesting witnesses previously to execution. Longchamp d. Goodfellow v. Fish, 2 N. R. 415. A signature by mark or initials is sufficient. Baker v. Dening, 8 Ad. & E. 94; In re Blewitt, 5 P. D. 116. Where a testator requested another person to sign his will for him, which the other did in his own name, that is sufficient. In re Clark, 2 Curt. 329.

Under the Wills Act (1 Vict. c. 26), s. 9, ante, p. 144, the will must be signed at the foot or end thereof; see also 15 & 16 Vict. c. 24, ante, p. 144. Where the signature is in the middle of the will, it does not give effect even to the part which precedes it. Sweetland v. Sweetland, ante, p. 144; Margary v. Robinson, 12 P. D. 8.

Attestation.] The Statute of Frauds does not direct that the witnesses shall see the testator sign; therefore, it is enough if the testator acknowledge to the witnesses, either separately or all together, that the will o handwriting is his. Stonehouse v. Evelyn, 3 P. Wms. 254; Johnson v Johnson, 2 Cr. & M. 140. But where the attestation purported that the will had been signed in the presence of the three witnesses who, in his presence and that of each other, signed the attestation, it was held insufficient to call one of them, who stated that he and another saw the testator sign, but that the third, whose signature was proved, was not then present. Doe v. Lewis, 7 C. & P. 574. It is sufficient, though the witnesses do not know the paper to be the testator's will. Wright v. Wright, 7 Bing. 457. If the witnesses set their marks to the will, it is enough; Harrison v. Harrison, 8 Ves. 185; Harrison v. Elvin, 3 Q. B. 117; and they may attest it at several times; Cook v. Parson, Prec. in Chanc. 185; but in that case one witness alone will not be able to prove the due execution of the will. The witnesses need not attest every page, but all the will should be in the room at the time of attestation; whether it was so or not is a question for the jury. Bond v. Seawell, 3 Burr. 1773; Lea v. Libb, 3 Mod. 262. The witnesses must attest and subscribe the will in the presence of the testator; but it is enough if the testator was in such a position that he might see the witnesses attest; as where he was in one room and the witnesses in another, and he might have seen them through a window. Shires v. Glascock, 2 Salk. 688. So where the testator was in bed, and the witnesses retired through a short passage into another room, and attested the will opposite to the door, which was open, as well as the door of the testator's room. chelsea, El. of, M. & M. 12. So where the testatrix sat in her carriage Davy v. Smith, 3 Salk. 395; Todd v. Winopposite the window of the attorney's office in which the will was attested. Casson v. Dade, 1 Bro. Ch. C. 99. But where the will was attested in an adjoining room, and the jury found that in one part of the room in which the testator was, a person inclining forward with his head out of the door might have seen the witness, but that the testator was not in such a situation, the execution was held invalid. Doe d. Wright v. Manifold, 1 M. & S. 294. The test in these cases seems to be "whether the testator might have seen, not whether he did see, the witnesses sign their names. Trimnel, 11 Jur., N. S. 248, Feb., 1865, per Wilde, J. O. Making a mark "" In re is a sufficient subscription. Doe d. Davies v. Davies, 9 Q. B. 648. The attesting witnesses may subscribe their names in any part of the will, and not exclusively at the end of it; nor is any testimonium clause,

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or form of attestation necessary. Roberts v. Phillips, 4 E. & B. 450. It seems, however, that, where there is no such clause to show whether they sign as attesting witnesses there must be extrinsic proof of it. Id. 457. And this decision applies as well to the new as to the old Wills Act. Ibid. Under the Wills Act, 1 Vict. c. 26, s. 9, ante, p. 144, the witnesses must both be present at the same time when the signature is made or acknowledged by the testator. And they must attest in the presence of the testator, but not necessarily, it seems, of each other. Cooper v. Bockett, 3 Curt. 659, per Sir H. Jenner Fust; assumed per cur. on appeal, 4 Moo. P. C. C. 419; Faulds v. Jackson, 6 Notes of Cas. Suppl. i. (14th June, 1845). In Casement v. Fulton, 5 Moo. P. C. C. 130 (argued June 17th19th; judgment 25th July, 1845), it was held on the construction of a similar clause in the corresponding section of the Indian Wills Act (which however omits the words "shall attest and "), without reference to Faults v. Jackson, supra, that the witnesses must also subscribe in the presence of each other. This decision, which was based on the words such witnesses," has not been followed; see 1 Wms. Exors., 8th ed. 91; Ld. S. Leonards' Handy Book of Property Law, 8th ed. 244. The testator must sign or acknowledge his signature to both witnesses present together, before either of them attests. Cooper v. Bockett, supra; Hindmarsh v. Chariton, 8 H. L. C. 160. If a witness sign before the testator an acknowledgment by him of his signature after execution by the testator is insufficient. S. C.; Moore v. King, 3 Curt. 243. It is sufficient if the witnesses sign with their initials. In re Blewitt, 5 P. D. 116. As no form of attestation is necessary, the mere subscription of two names, without calling themselves witnesses, will be prima facie sufficient. Bryan v. White, 2 Rob. Ecc. Rep. 315. An acknowledgment by a testator of his signature previously affixed is sufficient, if the will bearing his signature, visibly apparent on the face of it, be produced to two witnesses present together, and they are asked by him, or in his presence to subscribe the same. Gaze v. Gaze, 3 Curt. 451; Ir re Ashmore, Id. 756; Inglesant v. Inglesant, L. R., 3 P. & M. 172; Daintree v. Fasulo, 15 P. D. 67, 102, C. A. But where the witnesses neither see nor have the opportunity of seeing the signature, the acknowledgment is insufficient, even although the testator declares the paper to be his will. Blake v. Blake, 7 P. D. 102, C. A. See further, 1 Wms. Exors., 8th ed. 89, 90; and generally as to the signature and attestation requisite under the Wills Act, Id. 76 et seq. Where after a will has been duly executed S. signed his name under those of the attesting witnesses, it may be proved that he did not sign for the purpose of attestation. In re Sharman, L. R., 1 P. & M. 661; In re Smith, 15 P. D. 2.

What witness must be called.] To prove a will of land it is sufficient to call one of the witnesses, if he can speak to all the requisites of attestation. B. N. P. 264; Longford v. Eyre, 1 P. Wms. 741; Belbin v. Skeates, 1 Sw. & Tr. 148; 27 L. J., P. M. & A. 56; following Wright v. Doe d. Tatham, post, p. 147.

It was held that on an issue of Chancery all the witnesses ought to be called. Bootle v. Blundell, 19 Ves. 494. Though this was the general rule in cases where the suit was instituted by the devisee to establish the will, yet where the suit was by the heir against the devisee for the purpose of setting aside the will, the devisee was not required to produce all the witnesses. Tatham v. Wright, 2 Russ. & Myl. 1. Upon the trial of an ejectment brought by the heir for the recovery of the same lands as those mentioned in the last case, one of the attesting witnesses who proved the will on the issue out of Chancery, having died, the defendant proved his testimony from the shorthand writer's notes, which were held to be suffi

cient evidence of the execution of the will, though another attesting witness was present at the trial. But the previous proceedings in the Court of Chancery upon which an issue had been found for the devisee, were held not to be in evidence of the execution. Wright v. Doe d. Tatham, 1 Ad. & E. 3, Ex. Ch.

Proof where the witnesses are dead, or deny their attestation.] Where the witnesses are dead, this fact and their handwriting should be proved. "Where the attestation clause recites a compliance with all the requisite ceremonies in respect of all the witnesses, it is enough, in order to make a prima facie case, to prove the death of all, and the handwriting of one of them; because it will be presumed that everything the witness thus declared by his attestation to have been done, was really done." Andrew v. Motley, 12 C. B., N. S. 527, 532; 32 L. J., C. P. 128, 130, per Williams, J. Though the attestation does not express that the witnesses subscribed the will in the presence of the testator, yet a jury may presume that fact in favour of the will. Croft v. Pawlett, Stra. 1109; Hands v. James, 2 Comyn, 531; Doe d. Davies v. Davies, Vinnicombe v. Butler, infra. And it seems that a general form of attestation must be taken as affirming that all has been done in the presence of the witnesses which is stated in the body of the instrument. Buller v. Burt, coram Leach, M. R., cited 4 Ad. & E. 15. The principle of these decisions seems to be fully recognised in Doe d. Spilsbury v. Burdett, Id. 1; and S. C. in D. P., 6 M. & Gr. 386; 10 Cl. & F. 340 (see this case infra). See also Wright v. Sanderson, infra.

Even although the witnesses to a will should swear that the will was not duly executed, evidence may be adduced in support of the will. Lowe v. Jolliffe, 1 W. Bl. 365; Bowman v. Hodgson, L. R., 1 P. & M. 362; see Wright v. Rogers, Id. 678. Where one witness gives evidence against due execution, the party supporting the will must call the other witness. Owen v. Williams, 32 L. J., P. M. & A. 159; Coles v. Coles, L. R., 1 P. & M. 70. A will was attested by three witnesses, one (standing second) being a marksman and the other two being dead, the handwriting of these two was proved, but the marksman being produced, recollected nothing of his signature; he was very old, and had known the testator; the will was uncontested for sixteen years; held, that the jury might presume the due execution of the will under the circumstances. Doe d. Davies v. Davies, 9 Q. B. 648. So although neither of the two witnesses can remember when the testator signed, it may be inferred from the circumstances that he signed before them. Vinnicombe v.

Butler, 3 Sw. & Tr. 580; 34 L. J., P. M. & A. 18; Wright v. Sanderson, 9 P. D. 149, C. A. And in the case of a lost will acted on for eight years, where no attestation clause was proved, but the names of C. D. and E. F. followed the signature of the testator A. B., due execution was presumed on proof of the deaths of C. D. and E. F., and the handwriting of A. B. and C. D. Harris v. Knight, 15 P. D. 170, C. A., diss. Cotton, L. J.

Where two of the witnesses are dead, and the surviving witness charges them with fraud in the attestation of the will, evidence of their good character is admissible. Doe d. Stephenson v. Walker, 4 Esp. 50; Provis v. Reed, 5 Bing. 435.

Proof of wills thirty years old.] A will thirty years old, coming from the proper custody, will be presumed, in the same way as a deed, to have been duly executed, although it bear some marks of cancellation. Andrew v. Motley, supra. As to proper custody, see Custody of ancient writings, ante, pp. 102, 103.

In Doe d. Spilsbury v. Burdett, supra, it was considered by the Q. B.

that, where the instrument creating a power required it to be executed by will, to be "signed, sealed, and published in the presence of, and attested by three or more credible witnesses," the will, although thirty years old, must bear an attestation that it was regularly executed according to the power (see 4 Ad. & E. 19). But this strictness as to the attestation clause applied only to wills executed under powers; in other cases of wills, as in the case of deeds, the attestation clause was by no means conclusive as to what was done. Even the oral testimony of the attesting witnesses is not so; Lowe v. Jolliffe, and Bowman v. Hodgson, ante, p. 147; and the decision in Andrew v. Motley, ante, p. 147, would be strong to show that the admissibility of a will thirty years old without proof of execution was not affected by such a defect in the clause of attestation. See further, post, p. 150. The execution of powers by will on and since Jan. 1st, 1838, has been much simplified by 1 Vict. c. 26, s. 10, post, p. 150.

Under the old law it was held that the thirty years were to be reckoned from the date of the will being executed. Doe d. Oldham v. Wolley, 8 B. & C. 22. The fact that under sect. 24, a will, with reference to the estate comprised therein, now speaks from the death of the testator would not seem to alter this principle.

Interested attesting witness.] Formerly if a will were attested by a person who, or whose wife, or husband took any interest thereunder, the will was void because it could not be proved; this was remedied as to an interested witness himself, by stat. 25 Geo. 2, c. 6, s. 1, which made such witness competent to prove the will, but avoided the devise to him; sect. 2 inade creditors competent witnesses, although the will charged the debts on the real estate. This Act still applies to wills made before Jan. 1st, 1838. As to the competency of the husband of a devisee, see Hatfield v. Thorp, 5 B. & A. 589.

By the Wills Act (1 Vict. c. 26), s. 14, if the attesting witness to a will be incompetent to prove it at the time of execution or afterwards, the will shall not be invalid on that account; and by sect. 15, if the attesting witness, or the wife or husband of the witness, be a beneficial devisee, &c., the devise shall be void, and the witness competent; and by sect. 16, in the case of a will charging real or personal estate with debts, a creditor, or the wife or husband of one, may attest the will, and prove its execution; and by sect. 17, the executor is admissible to prove the execution, or the validity or invalidity of a will. This Act, by sects. 1, 34, applies to all wills made or re-executed on or after Jan. 1st, 1838.

A devise to an attesting witness is void though there are three other attesting witnesses. Doe d. Taylor v. Mills, 1 M. & Rob. 288. Where a will attested by A. contains a devise to A. and is confirmed by a codicil not attested by A., the devise is good, for the codicil incorporates the will, and they form one instrument. Anderson v. Anderson, L. R., 13 Eq. 381. The marriage, after attestation, of the attesting witness to a devisee does not affect the devise. Thorpe v. Bestwick, 6 Q. B. D. 311.

The Act for making interested witnesses competent (6 & 7 Vict. c. 85), provides that it shall not affect the new Wills Act; but the Statute of Frauds is not referred to in it.

Proof by probate.] The Probate Court Act (20 & 21 Vict. c. 77), after providing by sect. 61, that where a will affecting real estate is proved in solemn form, or is the subject of any contentious proceeding, the heir and persons interested in the real estate shall be cited, enacts by sect. 62, that 'where probate of such will is granted after such proof in solemn form,

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