doubt, have superadded this negative declaration? But if CHAPTER V. the word "attest," though, when considered with reference to its immediate context alone, incapable of being interpreted "attest by signing a written memorandum,” without straining its natural import, and overruling the settled construction of the Statute of Frauds, should yet, when considered with reference to the fact that appointments are within the purview of the new statute, be so interpreted, then the clause under discussion, were its effect expressed in terms, would run thus: "but no particular form of the written memorandum of attestation hereinbefore required is prescribed"-a simple truism; and we should, besides, impute to the legislature the absurdity of requiring, by mere implication, an indefinite ceremony, as essential to give existence to the object of its principal enactments-a valid will. Again, the witnesses are required to "attest," and also to "subscribe"-consecutive acts to be done by them; but, if "attest" were construed "attest by signing a written memorandum," the words" and shall subscribe" would be rendered nugatory, for attestation would be subscription, though subscription would not be attestation. Besides, if lunatics may now be witnesses (s. 14), the legislature would be chargeable with requiring subscription to a statement of facts of which the subscriber may be wholly unconscious. It might, indeed, be urged, on the other hand, that as such witnesses cannot attest in the sense put upon that word in the Statute of Frauds, namely, by mental observation of the capacity and conduct of the testator, of which the witnesses were the judges (1), the same word in the new statute cannot have the same meaning. Are we, then, seriously to regard the legislature as enacting, that the two imbeciles shall not only be deemed good witnesses, but write themselves down good witnesses?

(1) Harris v. Ingledew, 3 P. Wms. 91; and see 7 Ves. 348.

and to the suptency of lunatic

posed compe

witnesses.

CHAPTER V.

Why a formal memorandum

of attestation,

though unes

sential, is practically valuable.

But although the sound conclusion seems to be that no memorandum of attestation is necessary to the validity of the will (m), (a conclusion which would derive sanction from the admission to probate of wills, made since the act has been in force, without any such memorandum, if, indeed, that fact would not be equivalent to a solemn adjudication upon the point), yet it is advisable, not only that there should be such a memorandum (n), but that it should accurately state all the ceremonies which, according to any possible construction of the statute, may be deemed requisite to constitute a valid execution. For the memorandum, besides its use in drawing attention to the prescribed ceremonies, is important in two points of view: first, as matter of title, by affording such primâ facie evidence (o) of the due execution as supersedes the necessity of satisfying purchasers, mortgagees and others, by a statutory declaration (p) of the witnesses, or by other extrinsic proof, that all the requisites of the statute were fulfilled (9); secondly, as regards probate, for in the ab

(m) "We think that a will should be sufficiently executed if the name or mark of the testator, and two other names or marks, being the names or marks of witnesses, appear upon it, although there be no express attestation." Fourth Rep. Real Prop. Comm. "The witnesses, as before, are to attest and subscribe the will in the presence of the testator; but no form of attestation is necessary; and therefore the witnesses may subscribe or set their names without any clause of attestation."-Sugd. on Wills, 14; and see 2 Sugd. V. & P. 10th ed. 252.

(n) Which may be in this form.

"Signed by the said John Styles
the testator, in the presence of us,
present at the same time, who in
his presence, and in the presence
of each other, have subscribed our
names as attesting witnesses."
(0) See Hands v. James, Co-
myn, 531.

(p) 5 & 6 Will. 4, c. 62.
(q) A purchaser refuses such a
declaration at the peril of costs.
See Long v. Collier, 4 Russ. 267.
The old practice was to require
proof per testes of a recent will,
or the concurrence of the heir;
(See 2 Sugd. V. & P. 10th ed.
103); afterwards the requisition
was confined to cases where the
material facts were not stated in

CHAPTER V.

sence of a clause of attestation, expressing that the witnesses were present at the same time, the Ecclesiastical Court will not admit the will to probate in common form, (i. e. on the oath of the executor), but requires the fact to be proved by affidavit. We should hesitate, therefore, to follow an able writer on the new statute, when he states as a clear proposition that no memorandum of attestation is necessary (r), for assuming that bare subscription would unquestionably satisfy the statute, still it would certainly induce the practical inconveniences already pointed out. Another caution may be added-to Witnesses' admake the witnesses insert, after their names, their places of abode and qualities, in order that they may be the more easily found and identified.

The ceremony of publication, if it really ever was a substantive legal ceremony (s), is abolished; for wills, executed in the manner required by the act, are declared to be "valid without any other publication;" though the thirty-fourth section contemplates republication (t), as distinguished from re-execution (u). The testator need not divulge, and may even misrepresent (a) to the witnesses, the character of the instrument which they are required to attest; nor need that instrument contain, within its four corners, any substantive disposition whatever, but it may simply refer to some pre-existing deed, book, or paper (y), not authenticated according to the statute, nor

Rep. of R. P. Comm.

(u) Vide post, 382.

(x) See Trimmer v. Jackson, 4 Burn's Ecc. L. 6th ed. 130.

(y) Habergham v. Vincent, 2 Ves. J. 228; Smart v. Prujean, 6 Ves. 560; Guest v. Willasey, 2 Bing. 429, 3 Bing. 614; Gordon v. Lord Reay, 5 Sim. 274; Utterton v. Robins, 1 Ad. & Ell. 423, 2 Nev. & P. 319.

ditions.

runcation, as mony, abolish

a distinct cere

ed.

CHAPTER V.

Execution and attestation of testamentary appointments.

How testamen

tary powers

should now be

expressed.

Pre-existing

powers within the act.

otherwise than by force of such reference, and not, perhaps, even present at the time of execution.

In the execution and attestation of wills, intended to operate as appointments under powers, the very same formalities (s. 10) must be observed; whatever may be the ceremonies, if any, prescribed, or dispensed with by the power, and whether the power was created before or after the act came into operation, and no other formality need be observed. In this respect, the power will be well executed if all the requisites of the act should be satisfied, though every requisite of the power should be omitted or contravened, and badly executed, though the power should be strictly pursued, if any particular of the new statutory ceremonies should be wanting. Thus, sealing, delivery, publication, attestation by three or more witnesses, or by one witness only, occurring among the terms of a testamentary power, are to be entirely disregarded. All attempts to throw round the donee of a testamentary power the protection of additional solemnities, in regard to the mode of execution or attestation, (as by requiring professional, adult, or even credible witnesses), are met by the inflexible negative of the statute. In framing testamentary powers, therefore, either there should be no mention of the mode of execution or attestation, or the ceremonies prescribed by the act should be fully and accurately stated, or a short reference should be introduced to the general law, (as," to be executed and attested as required by the statute for the amendment of the laws with respect to wills"); and of these suggestions, the last is, perhaps, the most eligible for general adoption. The same scrupulous attention must be paid, in all cases, to the due execution, according to the statute, of testamentary appointments; for, although the appointee should be a wife or child of the testator, and although the power itself should be rigidly observed, yet it should seem that non-compliance

CHAPTER V.

Whether the garding powers,

enactment, re

be not too

with the requisition of the legislature, which is more im-
perative than, under the old law, the requisition of the
donor, would admit of no equitable relief. In the inves-
tigation of titles derived under testamentary appoint-
ments, executed since the commencement of the act, the
practitioner must learn to read the power, however an-
cient the date of its creation, with the material alterations
virtually introduced by this ex post facto law. The le-
gislature, in not only refusing to parties the choice of
their own forms of execution and attestation, but super- strong.
seding those already well prescribed, has certainly gone
a considerable length for the sake of uniformity-a
quality, which, however pleasing, can never, without
violence, be extensively communicated to the law, until
human affairs and human desires shall be also taught
to hold one unvarying course, in obedience to some ex-
act scientific standard. But the act is confined to the
mode of execution and of attestation; and in regard,
therefore, to all other matters, though relating to the
quality or the perfection of the instrument, as inrolment,
registration, engrossment on parchment, indentation, or
any similar requisite, however whimsical, (for of such re-
quisites whimsicality is the essence (z)), the terms of the
power must be pursued, as before; and of course this
remark applies à fortiori to matters relating to the time
or the place of execution.

But it is confined to execu

tion and attest

ation.

on the policy

nies prescribed

by the new law.

With respect to the policy of the new law, as regards Considerations the execution and attestation of wills, opinions differ of the ceremowidely. There was wisdom, perhaps, in establishing one invariable mode of authentication; but then a form designed for common use, (personal property being more or less freely bestowed on every man), should have been of the simplest kind, and have been prescribed in the most

(2) See Hawkins v. Kemp, 3 East, 410.