privily and apart from her husband, and that the deed had been explained to her. William Steptoe died, leaving surviving him his wife and several children. After his death, Mrs. Steptoe sold a part of the lands above mentioned to pay her debts, and Rowan became the purchaser. After the death of Mrs. Steptoe, the complainants filed this bill to set aside the last-named conveyance, on the ground that she had but a life estate in the land, and after her death it belonged to them, under the terms of the marriage settlement. The circuit court ordered the bill dismissed. The other facts appear from the opinion.

Harrison, for the appellants.

Leigh, for the appellees.

By Court, BALDWIN, J. The court perceives nothing to disapprove in the decision of this court in Tabb v. Archer et al., 3 Hen. & M. 399 [3 Am. Dec. 657]. The essential principle of that decision is understood to be, that marriage articles made between an infant feme and her intended husband, beneficial to her and her contemplated issue, are obligatory upon the parties, and will be enforced in a court of equity by a settlement in conformity therewith, on the application of the issue of the marriage.

Such a contract is thus distinguished from other contracts, voidable at the election of an infant party. The distinction is believed to be wise and salutary. Infants of certain ages being capable in law of contracting marriage, if their contracts with the other party, made in contemplation thereof, and with the view of securing a provision for them and their offspring, could be set aside by them at future periods, by their mere election, the consequence would be, that such agreements or settlements could not be made with safety by the other party to the marriage without a special act of the legislature, and they would be greatly discouraged, or rendered not only precarious, but often mischievous.

The principle of this distinction is countenanced by the opinicns of great English judges prior to our revolution. It is true, that since our separation from the mother country, it has been shaken and perhaps overturned there by a contrary doctrine. But that furnishes no good reason why we should adopt views believed to be narrow and injudicious, especially against the authoritative adjudication of our own judges.

The court, however, though expressing, to avoid misapprehension, its approbation of the principle above mentioned, is further of opinion that the same is not properly applicable to

the present case. Here the infant feme was no party to the marriage articles; which were made between her guardians on the one part, and her intended husband on the other; and which can not have the effect of divesting her property, without holding that her guardians had authority, without her concurrence, to alienate her estate. This would be unwarranted by any sound principle, unnecessary for the validity of marriage agreements and settlements, and impolitic, in subjecting minors to such dispositions of their property, without their knowledge, and even against their will.

The court is therefore of opinion, that the marriage articles in question were of no obligatory force upon the infant feme; and that the deed of settlement made after the marriage, in conformity with those articles, had no greater effect, being merely void as to her (even upon the supposition that she had then attained full age, of which there is no evidence in the record), for want of the privy examination required by law. In such a case, it is true, there may be acts of the feme, after she has attained full age, and when sui juris, of such a nature as to adopt or ratify the marriage agreement made for her by her guardian. What should be the character of such acts, it is unnecessary to consider in the present case, there being no evidence whatever tending that way.

It is therefore the opinion of the court, that there is no error in the decree of the circuit court dismissing the bill of the appellants; and it is decreed and ordered that the same be affirmed, with costs to the appellees.

ALLEN, J. The wife never having executed the articles entered into between her guardians and intended husband before marriage, and while she was an infant, and there being no evidence of any election to take under the articles after the death of her husband, I concur in the decision affirming the decree; but express no opinion upon the question, whether it is competent for an infant to bind his real estate by a marriage settlement, it not being necessary to the decision of this case. CABELL, P., absent.

DEED OF INFANT FEME COVERT IS VOID, though dated after her majority: Schrader v. Decker, 49 Am. Dec. 538, note 541.

ACKNOWLEDGment of DeeD BY FEME COVERT: See Jones v. Lewis, 47 Am. Dec. 338, note 340, where other cases are collected; James v. Fisk, Id. 111, note 114; Livingston v. Kettelle, 41 Id. 166, note 168, where this subject is discussed at length.

INFANCY OF WIFE AT TIME OF MARRIAGE SETTLEMENT no ground for setting it aside, when: See Lee v. Stuart, 21 Am. Dec. 599.

ROSSER ET AL. v. FRANKLIN.

[6 GRATTAN, 1.]

WHERE TESTATOR PUTS HIS MARK TO SUBSCRIPTION OF HIS NAME to his will in the presence of two or more subscribing witnesses, this is a sufficient signing thereof, within the meaning of the statute.

IT IS NOT NECESSARY FOR SUBSCRIBING WITNESSES TO SEE TESTATOR SIGN his will, nor that he should acknowledge to them his signature thereto, or even that the instrument is his will. It is sufficient if he acknowledges, in their presence, that the act is his, with a knowledge of the contents of the instrument, and with the intention that it shall be the testamentary disposition of his property. Such acknowledgment is a ratification of the signature, whether made by himself, or by another in his presence and by his direction.

WHERE WILL IS SIGNED BY REQUEST OF TESTATOR and in his presence, the subsequent addition by him of his mark to the signature so made is superfluous. And whether such mark is added before or after the witnesses subscribed the will is not material, where the whole transaction is one continuous uninterrupted act, conducted and completed within a few minutes, while all concerned in it continued present, and during the unbroken supervising attesting attention of the subscribing witnesses. SUPERSEDEAS. The county court admitted to probate the will referred to in the opinion, and the contestants appealed to the circuit court, which affirmed the judgment of the county court. The contestants then applied to this court for a supersedeas, which was allowed. The other facts are stated in the opinion. Bouldin, for the appellants.

Patton and Garland, for the appellee.

By Court, BALDWIN, J. The evidence in the cause is satisfactory to prove that the paper writing propounded as the last will and testament of Jane Wood, deceased, was acknowledged by her as her act in the presence of the attesting witnesses, who subscribed the same as such in her presence, and moreover at her request; that the testatrix was at the time of sound disposing mind and memory, understood the nature and contents of the instrument, designed the testamentary disposition of her property thereby made, and was in no wise the subject of any fraud or undue influence. The case, therefore, turns upon the question whether the formal execution and attestation of the instrument was in the mode prescribed by law.

Our statute law requires a will, whether of realty or personalty, to be in writing, and signed by the testator, or by some other person in his presence and by his direction, and moreover, if not wholly written by himself, to be attested by two or more credible witnesses subscribing their names in his presence.

AM. DEO. VOL. LII-7

The paper in question appears upon its face to be signed with the name and mark of the testatrix, and subscribed with the names of two of the attesting witnesses, and with the name and mark of the third. The names of the two former witnesses, to wit, Neighbours and Cralle, who were dead at the time of the probate in the county court, are proved to be in their handwriting, and the name of the third, to wit, Driskill, who has been examined in the cause, is proved to be in the handwriting of Neighbours, and the body of the will, together with the signature of the testatrix's name, is also proved to be in the handwriting of Neighbours. The surviving witness, Driskill, proves the acknowledgment of the testatrix in the presence of himself and the other two witnesses; that his own name was written by Neighbours, at his own request, and the mark thereto made by himself; and that Neighbours and Cralle wrote their own names. Driskill also proves that the testatrix put her mark to the subscription of her name; but he states that when he made his mark, which was after the other witnesses had written their names, the testatrix had not put her mark to the subscription of her name, but made it subsequently; and the inquiry is, whether the fact be according to the recollection of the witness, and if so, whether under the circumstances it be material.

The surviving witness, Driskill, proves that the testatrix actually executed the instrument in the presence of himself and the other two witnesses by her affixing her mark to the subscription of her name, and this is a sufficient signing within the meaning of the statute; so that the only thing which can be material in this part of the inquiry is, whether she made her mark before or after the subscription of the witnesses. The proof that the signatures of the two deceased witnesses is in their handwriting is secondary evidence derived from them, that prima facie all the essential requisites of the statute were observed. It is moreover a fair presumption that the witness Neighbours, who wrote the will, and concurred in its attestation, gave his attention as the confidential friend of the testatrix, to its due execution in the proper order of time. The surviving witness, Driskill, is an illiterate person, who gives his recollection after the lapse of more than sixteen years, as to the order of time of one of several incidents occurring within the brief period of a few minutes; and he appears to be mistaken as to the season of the year in which the whole transaction occurred. If the moment of time at which the testatrix made her mark be material, the courts below who

had that witness before them, enjoyed a better opportunity than this forum of forming a correct judgment in regard to the credit and weight due to his testimony; and all circumstances considered, we can not undertake to say that they did not estimate it correctly; and upon the whole, the fair inference is that the testatrix made her mark before the subscription of the witnesses. If this were otherwise, can it be considered material?

It is not necessary that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature, or even that the instrument is his will. It is enough that he should acknowledge in their presence that the act was his, with a knowledge of the contents of the instrument, and the design that it should be the testamentary disposition of his property. If the paper has been subscribed by himself, such an acknowledgment is a recognition and ratification of his signature. If his name has been subscribed to it by another, such acknowledgment is a recognition and ratification of the signature as having been made for him in his presence and by his direction. In this case, if the testatrix made her mark after the attestation of the witnesses, it seems to have been an afterthought, and not in pursuance of any design conceived prior to the attestation. The witness Driskill proves that, upon making his mark to the subscription of his name, he handed the pen to the testatrix, who remarked to the witness Neighbours: "As you have written my name, I will make my mark." The fair presumption, therefore, from the evidence is, that the name of the testatrix had been written by Neighbours in her presence and at her request, without any design on her part to affix her mark to it, until the idea occurred after the attestation of the witnesses, and in that aspect it was a work of supererogation.

And, moreover, the fact, whether in the order of time the testatrix made her mark before or after the subscription of the witnesses, is, under the circumstances, in no wise material, insomuch as the whole transaction must be regarded as one continuous, uninterrupted act, conducted and completed within a few minutes, while all concerned in it continued present, and during the unbroken supervising attesting attention of the subscribing witnesses.

BROOKE, J., Concurred in affirming the judgment.
Judgment affirmed.

DANIEL, J., absent.