not.

see them or is enough if the testator might see, it is not necessary that he should actually see them signing; for, at that rate, if a man should turn his back, or look off, it would vitiate the will. Here the signing was in the view of the testator; he might have seen it, and that is enough. And they compared it to the case, where the testator lay sick in bed, with the curtain drawn,(r) while the witnesses subscribed.

On a trial at bar, where the question was, whether the witnesses to a will had pursued the directions of the statute of frauds, in their modes of subscribing their names, it was resolved, that where the testator lay in a bed in one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that, and the door of the room where the testator lay, were open, so that he might see them subscribe their names if he would, though there was no positive proof that he did see them subscribe their names, there was a sufficient subscribing within the meaning of the statute; because, it was possible that [428] the testator might see them *subscribe; and, therefore, the court held, that if the witnesses subscribed their names in the same room where the testator lay, though the curtains of the bed were drawn close, it was a good subscribing within this statute.(8)(155)

A similar doctrine to that which we have shown to have been maintained in the courts of law, was adopted by Lord Thurlow in the court of Chancery, in a case circumstanced as follows :(1) Honora Jenkins, having a power, though covert, to make a writing in the nature of a will, ordered the will to be prepared, and (s) Davy and Nicholas .

(r) Shires v. Glascock, 2 Salk. 688. Smith, 3 Salk. 395.

(t) Casson v. Dade, 1 Bro. C. C. 99.

(155) The notion of the civil lawyers was more rigid and cautious in this respect. The attestation ought to be in conspectu testatoris; and further, non est satis, ut quidam tradiderunt, testes oculatos esse, si testatorem ipsi non videant, forte velo aut cortina interjecta conspectum adimente, licet vocem ejus audiant : sed necesse est ut faciem ejus videant, ne qua fraus fiat alio forte subornato, qui vocem testatoris imitando simulet. Vinn. Com. 1, lib. 2, tit. 10. And Vinnius was of opinion that a blind man (de quo nihil traditum est) could not be a witness, because he could not satisfy the law, which required that the testator should be seen by the witnesses, and that they should be able to recognise the testator's signature. This point may make a quære in our own law.

went to her attorney's office to execute it. Being asthmatical, and the office very hot, she retired to her carriage to execute the will, the witnesses attending her; after having seen the execution they returned into the office to attest it; and the carriage was put back to the window of the office, through which, it was sworn by a person in the carriage, that the testatrix might see what passed. Immediately after the attestation, the witness took the will to her, which she folded up and put into her pocket. The Lord Chancellor inclined very strongly to think the will well executed, and the above-mentioned case of Shires and Glascock, 2 Salk. 688, was relied upon as an authority. Mr. Arden pressed for an issue, but, finding the Lord Chancellor's opinion very decisive against him, he declined it.

*In Broderick v. Broderick,(u) where the testator devised *[ 429 ] lands to J. S. and his heirs, and duly subscribed his will in the presence of three witnesses, who went down stairs into another room, and attested the will there, which was out of the presence of the testator, the relief afforded to the heir against a release obtained from him by the devisee, under a false assurance that the will was sufficiently executed, was a necessary consequence of the opinion of the Chancellor,(x) that the devise was void for want of an execution conformable to the statute. And it was in vain contended for the devisee, that the will, as to the devisor, was executed, and that the form of the witnesses subscribing in the presence of the testator, was only prescribed by the statute of frauds, to prevent a rash disinherison of the heir: but that since the execution of the will was fully proved, though the circumstances required by the statute had not been observed, yet, it was the plain intention of the testator, that the devisee should have the estate; and that the devisee having the legal estate, it would be hard to take it from him in equity, and by those means to dispose of the estate against the intent of the testator, from the devisee, for want of a ceremony, when the end of that ceremony was answered, by its being made to appear, undoubtedly, that the testator did sign and seal this will.

Nor will the subscription of the witnesses in the same room always accomplish the intention of the statute, or necessarily imply it to be in the testator's presence, for, as was observed by (x) Lord Harcourt.

(u) 1 P. Wms. 239.

[430]

It is not e

the testator

so as to give

him a mental knowledge of the fact.

Lord Chancellor Macclesfield, in Longford v. Eyre,(y) it might be done in a corner of the room in a clandestine and fraudulent way, and then it would not be a subscribing in the testator's presence. . But his Lordship further said, that as it was sworn by the witness, that he subscribed the will at the testator's request, and in the same room, that could not be fraudulent, and was well enough.

*Thus, therefore, the law upon this subject seems sufficiently settled upon this distinction, that if the attesting witnesses subscribe the will in such a situation with respect to the testator, as that it was not possible for him to have seen the act done by them, such will is void as to real estate for the defect of solemnity in its execution; but if their situation was such as to afford the testator the opportunity of seeing them subscribe, if he chose, their at testation under such circumstances will be good and valid, although in point of fact they were not seen by the testator in the very act of subscribing their names.

The mere corporal presence, however, of the testator, unless nough that his mind and faculties also are present, will not satisfy the stais corporally tute on this point; for there must be a mental knowledge of the present, he fact, so that, as a subscription clandestinely made in a corner of must possess his faculties the same room with the testator, was not on this account a sufficient attestation, so neither would such subscription in the same room suffice, if the percipience and intelligence of the testator were gone so as to constitute it an act done without his knowledge. On this principle was founded the decision of Right v. Price,(z) in which case, the form of an attestation was written on the second sheet, and they put their names to it in the room where the testator lay, but he was in a state of insensibility.— And the question was, whether this will was duly executed for passing lands according to the statute of frauds ?

In support of the will it was argued, that insensibility was something short of death, and if the testator was alive, it could not be said that the will was not attested in his presence. That the question was, whether the testator, having done all that was necessary on his part, and the attestation having been made according to the words of the statute, a fair transaction should be [431] set aside, because a formality required, according to an implied (z) Doug. 241.

() 1 P. Wms. 740.

intention of the legislature, had not been complied with; that it did not appear but that the testator might, by possibility, have opened his eyes, while the witnesses were subscribing their names; which, according to the law, as laid down in Shires and Glascock, would have been sufficient.

But the court said, that they would lean in support of a fair will, and not defeat it for a slip in form, where the meaning of the statute had been complied with; this was the principle of Shires and Glascock's case, and other cases of that sort. But the case then before the court was not one where there was a measuring cast and room for presumption. All the witnesses knew, at the time of the attestation, that the testator was insensible. He was a log, and totally absent to all mental qualities. That it was usual, in precedents of wills, to say, that the witnesses subscribed at the request of the testator; that, indeed, was not expressly required by the statute, but the practice showed the general understanding, and that the nature of the thing implied a request. The attestation in the testator's presence was as essential as his signature, and all must be done while he was in a capacity to dispose of his property. In this case, the testator could not know whether the will that he had begun to sign was that which the witnesses attested; he was dead to all purposes or power of conveying his property.

Whether an acknowledgment by

I do not know that it has ever been judicially decided, whether an acknowledgment by a subscribing witness to the testator of his hand-writing to the attestation, would be sufficient. In the the subscrib case of Risley v. Temple,(a) the facts were, that the testator, ly- to the testaing witness ing sick in bed, made his will, and signed, sealed, and published tor would be sufficient. it, in the presence of three witnesses, but being tired, ordered them to go and subscribe it in another room. They went into another room, out of the presence *and sight of the testator, and *[ 432 ] subscribed their names, and then returned and owned their names to the testator, who looked upon the will, and said, they have done well. But this point was not spoken to in the case according to the report.

It seems very plain, however, that to hold such an acknowledgment sufficient, would be in direct opposition to the words of the statute, which, though it does not by the 5th section require

(a) Skin. 107.

That the witnesses may sub

scribe at different times.

*[433]

the signature of the testator himself to be in the presence of the witnesses, does yet expressly direct the subscription of the witnesses to be in the testator's presence; and therefore, this part of the ceremonial does certainly seem to preclude the same latitude of construction which has been applied to the act of the testator himself. And it seems little to be doubted, but that, agreeably to the greater spirit of tenderness for the words of the statute, which now seems to prevail in our courts of justice, such an acknowledgment by a subscribing witness, of his hand-writing to the attestation, made to the testator, after making the subscription out of his sight and presence, would be deemed an insufficient compliance with the requisition in this respect made by the

statute.

It has been shown, that a testator may write, and we shall now make it appear from the authorities, that he may publish, his will at different times; or, in other words, that an attestation made by the witnesses respectively at three different times, if in the presence of the testator, satisfies the law.(156) The *two

(156) It may be interesting to compare our own with the civil law upon this article. In an early period of the Roman jurisprudence, it was held, that a testament ought to be made uno contextu, without any foreign act intervening, and the witnesses were likewise required to attest, without separating, or even discontinuing the act of subscribing, till all was complete. And, indeed, it does not seem that the witnesses were ever released from the necessity of subscribing at one time and in each other's presence. In favour, however, of certain unavoidable interruptions, the Emperor Justinian limited and explained the generality with which the rule had been expressed. In the Sixth Book of the Code, tit. 23, 28, the qualification of the doctrine is thus propounded: cum antiquitas testamenta fieri voluerit nullo actu interveniente, et hujusmodi verborum compositiv non rite interpretata pene in perniciem, et testantium et testamentorum processerit: sancimus in tempore quo testamentum conditur, vel codicillus nascitur, vel ultima quædam dispositio secundum pristinam observationem celebratur (nihil enim ex ea penitus immutandum esse censemus) ea quidem quæ minime necessaria sunt, nullo procedere modo, quippe causa sublitissima proposita ea quæ superflua sunt minime debent intercedere. Si quid autem necessarium evenerit ; et ipsum corpus laborantis respiciens contigerit, id est, vel victus necessarii, vel potionis oblatio, vel medicaminis datio, vel impositio, quibus relictis ipsa sanitus testatoris periclitatur, vel si quis necessarius natura usus ad depositionem superflui ponderis immineat, vel testatori vel testibus, non esse