1843. BLAKE against KNIGHT. There is no affirmative evidence whatever of the act of signing or acknowledging a signature, which May 19th. distinguishes this case from Chambers v. The Queen's Proctor; in that case one of the three attesting witnesses deposed confidently to the will having been signed in the presence of himself and of the other two witnesses; the Court held that affirmative was better than negative evidence; but the Court has never decided that all affirmative evidence can be dispensed with. The witnesses in the present case are positive that the will was not signed in their presence, they are equally positive that there was no seal affixed to it at the time they subscribed, and they are nearly as confident that there was no signature on the paper made at the time. This case resembles Ilott v. Genge (a). Reply. In Ilott v. Genge there was evidence that the testator had carefully concealed his signature from the witnesses at the time of attestation; and that fact standing uncontradicted, excluded the presumption of acknowledgment of an existing signature. In this case every thing was done in the most open manner; the two cases, therefore, are very distinct in their nature. Chambers v. The Queen's Proctor was cited, for the purpose of shewing how important an ingredient, in this case, is the lapse of time which has intervened between the execution of this will and the examination of the witnesses. The circumstance of this suit not being brought until after the death of the widow, is one not very favourable to the cause of the next of kin. (a) 3 Curt. 160. 1843. May 19th. BLAKE against KNIGHT. JUDGMENT. SIR HERBERT JENNER FUST. The deceased in this case is a Mr. Edmund Blake, who died on the 17th of December, 1838, having made a will which bears date the 6th of September, in that year, and of which probate was granted on the 3rd of January 1839. In June 1842, the deceased having been dead between three and four years, this probate was called in, and the executor, who had been in possession of the probate since January 1839, was called on to propound the will in solemn form of law. The will has now been propounded; it is all in the handwriting of the deceased, and appearing, as it does, to have been signed by the deceased in the presence of two witnesses, who, according to the attestation clause, had subscribed in his presence, and in the presence of each other, probate of it passed in the common form. The purport of the will, is to make provision for the widow of the testator; an annuity of 150l. is given to her, and the bulk of his property is given to Mr. Knight, whom he appoints sole executor. The widow, therefore, had an annuity of 150l., out of the property, which at the time when the will was proved, was sworn to be of the value of 7000l. The widow, if the deceased had died intestate, would have been entitled to a moiety, there were no children, and the brother, who was the only next of kin, would have been entitled to the other moiety. The interest of the widow would have been much larger under an intestacy, than under the will; for she was of such an age that an annuity of 150l. was not equivalent to a sum of 3500l. sterling; taking that to be the amount of a moiety of the deceased's property. Mr. John Blake the brother did not, on the death of the deceased, or shortly afterwards, question the validity of this will, or take any steps to call in the probate, but in February 1842, he resorts to a step, which unquestionably he is entitled to do, he calls in probate of this will, and puts the executor on proof of it. Now, as I have said, Mr. John Blake is entitled to do this, but considering the time at which he has chosen to do so, he is not entitled to any indulgence in this cause; he is entitled to have the law strictly administered, but to nothing beyond it; he must take the result of the case on the whole of the transaction. The will has been propounded in the mere common condidit, except in this, it pleads, "That the whole of the will, and of the attestation clause is in the handwriting of the deceased." There are three subscribing witnesses to the will, they have been examined, as have also two other persons to the fact of the handwriting; but before I proceed to consider the evidence, I will look a little to the will itself. The deceased is described as having been a lawyer, or in the service of a lawyer; the will bears the marks of having been written by a person conversant with legal business; it is written in a clear hand, evidently prepared with great care; it describes the property of which the deceased was possessed; in one part of the will some words were inserted by mistake, they are struck out, and are adverted to in the attestation clause; it is signed "Edmund Blake"; it is sealed; there are three subscribing witnesses, and the attestation clause is very special in itself. 1843. May 19th. BLAKE against KNIGHT. 1843. BLAKE against KNIGHT. The Court read it ante, p. 548.] Nothing can be more distinct and clear than these words; with such an attestation clause as this, it seems scarcely possible that any question could arise, as to such a paper being executed according the due requisites of law. It is now necessary to consider what is the evidence of the witnesses; remembering, that by the present Act of Parliament, a will, to be valid, must be signed by the testator, or by some other person in his presence and by his direction, and that such signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who are to attest and subscribe the will in the presence of the testator. The first witness is William Brewer, aged 62. He says to the first article, "I knew the deceased almost all my life, he had been writer to an attorney, but lived independent at last. I cannot say exactly what his age was, it might be seventy or more. One day, it may be three years ago, I was told that a message had been left for me by the deceased's wife, it was to the effect, that Mr. Blake was wanting me, my son, and my apprentice, to go up to him to sign his will, or witness his will. I do not remember what part of the year it then was, or what time of day, whether daylight or candlelight, it was in the evening. I went to the deceased's house, with my son and my apprentice; when we got to the door Mrs. Blake opened it, and shewed us into a small room on the ground floor where the deceased always sat; as she shewed us in she said to the deceased, who was sitting with his back towards us, "Here's Mr. Brewer and his son come," the deceased turned round on his chair to look at us, I sat down on one 1843. BLAKE against KNIGHT. side of him near the fire, the other two a little off May 19th. from him on the other side; the room was very small; there was nobody else in the room. The deceased took out a paper either from a drawer of the little table at which he was sitting, or from a portable writing desk, that stood or lay upon it; it was folded, he spread it before us, saying 'This is my will, it is a small will written on one sheet of paper and all on one side:' turning to me he said, 'Will you sign it,' or 'Will you witness it.' I took the pen and wrote my name, most likely the deceased told me where to write it. As soon as I had wrote my name I went back to my seat. Then he asked the others to sign as I had done, and they did. When they had so done he took and put the will away again, I cannot say whether in the drawer or in the desk. Before either of us signed I remember he said, 'That he had made a mistake, but he had rectified it at the bottom.' He did not sign it in my presence, he did not use pen and ink while I was with him; he did not say that he had written it himself, otherwise than as by what I have deposed. He did not say he had signed it. I cannot say that it had been signed when I saw it; I would not swear that Mr. Blake's name was not to it when I signed mine, but I did not see it, that is, I do not remember that I saw it. I have no recollection at all of having seen Mr. Blake's signature at the foot of the will when I signed my name to it; I am very sure that it was not signed by Mr. Blake the deceased, in my presence, and that he did not say of any name to it, that it was his or of his writing,' or anything to that effect. [The witness was shewn and identified the will.] I did not see the name |