CHAPTER V. tator, may sign by affixing either the name or the mark of the testator (x), though to affix the name is the preferable course; and, indeed, as the legislature has provided a mode by which all may sign, in the sense which education has associated with that term, it seems advisable, where the testator is a marksman, to procure his name to be affixed by some other person in his presence and by his direction;-that the signature should be placed at the foot or end of the will, for a signature placed at the commencement, or in the body or the margin, or at the bottom of one or more of several sheets other than the last sheet, will not avail, (by "the foot or end" being understood the conclusion of the instrument, without regard to the mechanical arrangement of the paper or the writing), but where the will consists of several sheets, (which should all be present at the time of execution (y)), the old practice of signing each sheet() should not be discontinued. Where the will adopts and incorporates, by reference, another writing, that writing should of course be clearly identified (a). If the testator sign by the hand of another, it will of course be proper that the fact should be particularly stated in the -presence of attestation (b). The second clause relates to the circum witnesses; (x) The will of A. B., dated in 1838, was signed thus, "C. D. by the direction of A. B.," and attested thus, "Signed &c. by me A. B., in the presence of" [two witnesses]. This will was admitted to probate. The act merely requires that the will shall be signed by the testator, or by some other person in his presence and by his direction. Even if "C. D." only had been subscribed, yet, if it had been proved that such subscription was made at the instance and in the presence of the testator, it could not have been said that the will was not duly signed. See 8 Ad. & Ell. 96. (y) Bond v. Seawell, 3 Burr. 1773. (2) See Wright v. Price, Dougl. 241; Winsor v. Pratt, 2 Brod. & B. 650, 5 B. Moore, 484. (a) Utterton v. Robins, 1 Ad. & Ell. 423. (b) Which may be in this form. 'Signed [i. e. with the name of the testator] by John Styles, of CHAPTER V. ment of signa stances under which the act of execution by the testator must be done, or be admitted to have been done, and renders it necessary that the signature, whether made by the testator himself or by the agency of another, should be made, or, having been already made, should be acknowledged by the testator, in the presence of two or more witnesses, who must, for that purpose, be present at the same time. If the testator have previously signed by the acknowledg hand of another, he should acknowledge that the signa- ture; ture was made in his presence and by his direction; and as an acknowledgment of the signature is now expressly required, it is conceived that the want of an acknowledgment, signified in words or by unequivocal acts, could not be supplied by any presumption or construction of law (c). But when another signs for the testator, in his presence and by his direction, in the presence also of the witnesses, no acknowledgment is necessary, for then "such signature" (words which embrace both the modes of signing previously specified) is "made" in the presence of the witnesses; yet, even in such cases, an acknowledgment may not be an impertinent ceremony. It may possibly be a question whether the witnesses, though required to be present simultaneously, when the will is signed or the signature is acknowledged, must be present to each other, or, in other words, whether the testator and the witnesses must be present together during that ceremony. The third clause relates to the authentication of the testator's act, by the attestation and subscription of the witnesses, and requires the witnesses, in whose presence the will has been signed or the signing has been acknowledged, to &c., gent., as and for the last will and testament of the said William Cook, the testator, in his presence and by his direction, in the presence of us, present at the same time, who in his presence, and in (c) Ante, 343, n. attestation and subscription of witnes ses; CHAPTER V. at different times. attest and to subscribe the will in the presence of the tes-subscription tator. The witnesses are not, however, expressly required to subscribe, as part of one and the same ceremonial, in the continuing presence of the testator; and it may, therefore, be contended that subscription by the witnesses singly, and at different times, would satisfy the statute, provided such subscription were made in the presence of the testator (d), for it is not necessary that they should subscribe in the presence of each other. But whether this construction, tending, as it does, while the testamentary act is yet in its inception, to disperse that evidence which the previous requisite of simultaneous presence had brought together, be warranted or not, it is highly inexpedient, in every point of view, that the testator and the witnesses should separate until the solemnities prescribed by the statute are complete. The testator is required to sign at the foot or end of the will, while the witnesses are required to subscribe, without saying where; but it is advisable that their signatures (or marks (e)) should also, as heretofore, be affixed at the foot or end of the writing. What state of circumstances may be deemed 'presence," for the purposes of this statute, is a question for judicial consideration, and is one which may arise on each of the above clauses; but it is apprehended that the construction of the new statute, so far as it adopts the language of the Statute of Frauds, and as the adopted expressions are not otherwise explained by a new context, must be governed by the decisions upon the latter statute (f); for the repeal of the old law does not carry with it a repeal of the old rules of construction. It should be observed, however, that though, as regards the testa "Presence," what? 66 (d) Ellis v. Smith, 1 Ves. Jun. 11. (e) See Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, Id. 504. (f) See Shears v. Glasscock, Carth. 81; Doe v. Manifold, 1 Maul. & S. 294; Winchilsea v. Wauchope, 3 Russ. 441. tor, mental consciousness is still included in the idea of CHAPTER V. presence, yet, as regards the witnesses, we have high authority for the position that presence may be grossly corporeal (g). testation; ambiguity of the concluding clause of the ninth section; If the ninth section had terminated here, it could form of athardly have been a question, whether the mere subscription of the names (or marks) of the witnesses, unaccom panied by any statement of the facts in respect of which, or the character in which, they subscribe, would be sufficient. But the legislature, from superabundant caution, has perplexed the direction that the witnesses "shall attest and shall subscribe" by adding a declaration that "no form of attestation shall be necessary"words of the vaguest import, and most unfortunately tacked to an enactment already obscure, but which, above all others, ought to have been perfectly lucid, and to have promulgated one simple and obvious rule to every, the meanest testator. If the legislature meant that no memorandum of attestation should be necessary, silence seemed to be the obvious course; for the Statute of Frauds, which also required the will to be attested and subscribed by the witnesses (h), was satisfied, as regards written evidence, by the simple subscription of the names (or marks) of the witnesses, which might even have been separately subscribed to different sheets of the will (¿); if, on the other hand, the legislature meant to say that there should be some form, but without prescribing any precise or definite form-that any expression importing attestation, as "witness" or "witnesses" prefixed to the names, should suffice-then its language is but ill-adapted to convey its meaning. The clause is, in the one point of view, redundant, in the other, defective in expression. (g) Sed quære. Vide post, 363, 371. (h) 29 Car. 2, c. 3, s. 5. (i) Carth. 37; 3 Mod. 263; 3 Burr. 1776. CHAPTER V. whether, ac cording to its true construc tion, any attestation clause is requisite. to be construed; By a patient process of deduction, however, we may, perhaps, arrive at a satisfactory solution of this important point, on which serious doubts are understood to exist in the minds of eminent conveyancers. When it is said that no form of attestation shall be necessary," the attestation meant must be the same attestation which is previously required by the words "shall attest ;" and as some form of that attestation is obviously necessary, the clause in question must either be rejected for repugnancy, or be understood in a qualified sense. The rejection of "Attest," how words is always the dernier resort. We have seen that the word "attest," used in pari materiâ, has received a sense according to which no written memorandum of attestation is requisite; and if that sense be still to prevail, then two, and only two, constructions of the clause present themselves:-either it means "but no definite or particular mode of performing the ceremony of attestation shall be necessary;" or it means "but no written record or memorandum of the fact of attestation shall be necessary." The former construction, after using considerable license of interpretation, hardly elevates the clause above nonsense; while the latter, though it may not render the clause operative, attributes at least a rational purpose. Is it not a reasonable supposition, that the legislature, recollecting the old practice of attesting by the subscription of a memorandum, and mindful especially of the litigation respecting the attestation of testamentary appointments, which had been the subject of adjudications at variance with the construction put upon the Statute of Frauds, but which were now about to be reduced under the general law (s. 10)-perhaps acutely reminded by its own futile attempt (k) to check the mischief—may, from over-anxiety to extinguish every v. Sandys, 2 Sim. 95. See Doe v. Burdett, 6 Nev. & M. 259. having regard to the fact that appointments are within the act; (k) 54 Geo. 3, c. 168; Doe v. Pierce, 6 Taunt. 402; Hougham |