IN ejectment upon Not guilty, and a special verdict, the case was: Stanley seised in fee writ his will with his own hand; beginning, “In the name of God, amen, I John Stanley make this my last will and testament," and thereby devised the lands in question, and put to his seal, but did not subscribe his name, only had it subscribed by three witnesses in his presence; and all this was done after 29 Car. 2, against Frauds and Perjuries; and whether this was a good will to pass the lands, was the question. And after several arguments it was adjudged by the whole court, sc. NORTH, WYNDHAM, CHARLTON, and LEVINZ, to be a good will; for being written by himself, and his name in the will, it is a sufficient signing within the Statute, which does not appoint where the will shall be signed, in the top, bottom, or margin, and therefore a signing in any part is sufficient. And per NORTH, WYNDHAM, and CHARLTON, the putting of his seal had of itself been a sufficient signing within the Statute; for signum is no more than a mark, and sealing is a sufficient mark that this is his will: but LEVINZ doubted of this upon the case in Roll. 1 Abridgm. 245, § 25. Submission to an award ita quod it be made, signed, and delivered, the arbitrator makes an award, and delivers it, but does not sign it: Et per Cur'. It is not good; but all agreeing upon the other reason, judgment was accordingly given for the defendant.1

1 "It was said by LORD CHIEF BARON PARKER, BARON CLIVE, and BARON SMYTHE (absente LEGG), that what is said by North, Windham, and Charlton, in 3 Lev. 1, "That putting a seal to a will is a sufficient signing within the Statute of Frauds and Perjuries,' is very strange doctrine; for that if it was so it would be very easy for one person to forge any man's will, by only forging the names of any two obscure persons dead, for he would have no occasion to forge the testator's hand. And the barons said if the same thing should come in question again, they should not hold that sealing a will only, was a sufficient signing within the Statute."- Smith v. Evans (Exch. 1751), 1 Wils. 313.

On signing at the "foot or end,' see St. 7 Wm. IV. & 1 Vict. c. 26 (1837), § 9 (Wills Act), and St. 15 & 16 Vict. c. 24 (1852), and 1 Woerner, Amer. Law of Adm. § 39.

The

Staubey

1188

was whether the will was

good with only devisor's real anneyed, Сташе праш of devisse was not subsembed ssigned the will

but the 3 witnesses,

Held seal suff

4221 of NA

on the 14th of April, 1862, whereby he appointed his sister, Jane Gais-
ford, and his brother, Henry Jenkins, excentrix and executor. There

were in Jenkins v. Jacsfred umber, 1862, and

the 6th November, 1862, and an mh made by Henry Atkins

dues here was whether a codicil was Henry Atkins damped as Jestator, who had st. dely executed Quite the Metin of the said John fac acule diffrenthy in writing, had a stamp of his

финитив gnatrice of restator subscritong withoses to the first

odicil to the will the said olenkins, now produced and shown
to me, the said codicil being written at the foot of the said will, and

executed by the said testator on the day of the date thereof by my
of the said John Jenkins, in com-

affixing or impressing the signation, at the foot or end thereof
pliance wafunt Urd

a donant freal 3 mar There af feared no sed, only the signature beleland codicil. Dr. Spinks moved for probate the will and two codicils. Held goodwill. His as

ry Jenkins, the executor na is a gook listaminey ivriting in a special declaration containing statement of the above facts, And cited Mrs. Gaisford and Mrs. Thring, the sisters, and with

JOHN JENKINS, late of Botley Hall, in the county of Southampton, Esq., died on the 22d of November, 1862, leaving a will, duly executed on the 14th of April, 1862, whereby he appointed his sister, Jane Gaisford, and his brother, Henry Jenkins, executrix and executor. There were two codicils, dated respectively the 5th of November, 1862, and the 6th of November, 1862, and an affidavit made by Henry Atkins stated the manner in which they had been executed.

Henry Atkins deposed as follows: "That I have for one year and upwards during the lifetime of the said John Jenkins, and up to the time of his death on the 22d of November last, acted as amanuensis to the said John Jenkins, who had for a considerable time past much difficulty in writing or signing his name; that the said John Jenkins, some months previously to his death, had an engraving made of his usual signature in order that the same might be used to stamp or impress his signature to letters and other documents, and that in his presence I have been in the habit of affixing to letters and other documents and papers the name of the said John Jenkins by means of the said stamp or engraving; that I am one of the subscribing witnesses to the first codicil to the will of the said John Jenkins, now produced and shown to me, the said codicil being written at the foot of the said will, and bearing date the 5th of November, 1862; that the said codicil was executed by the said testator on the day of the date thereof by my affixing or impressing the signature of the said John Jenkins, in compliance with his express orders and direction, at the foot or end thereof by means of the said stamp or engraving as the same now appears thereon, in the presence of the said John Jenkins and of Ann Budd, the other subscribing witness thereto, both of us being present at the same time, and that the said testator, after his signature had been affixed to the said codicil as aforesaid, placed his hand on the said codicil and acknowledged the signature as his own, and the said codicil to be a codicil to his last will, and requested me to attest the same, and I and the said Ann Budd thereupon attested and subscribed the said codicil in the presence of the said testator and of each other." The deponent then gave a similar description of the manner in which the testator's signature had been stamped upon the second codicil.

Dr. Spinks moved for probate of the will and two codicils.

SIR C. CRESSWELL refused to grant probate of the codicils on motion. Henry Jenkins, the executor named in the will, thereupon propounded the will in a special declaration containing a statement of the above facts, and cited Mrs. Gaisford and Mrs. Thring, the sisters, and with

himself the only next of kin, of the deceased. An appearance was given on behalf of Mrs. Gaisford, and a demurrer to the declaration filed and joinder in demurrer; but before the demurrer came on for argument Mrs. Gaisford died, and Mrs. Thring declined to take any steps in the matter.

Spinks, ex parte.

Cur. adv. vult.

SIR C. CRESSWELL. I am of opinion that the codicils were duly executed so as to comply with the 1 Vict. c. 26, § 9. It has been decided that a testator sufficiently signs by making his mark, and I think it was rightly contended that the word "signed" in that section must have the same meaning whether the signature is made by the testator himself, or by some other person in his presence or by his direction, and therefore a mark made by some other person under such circumstances must suffice. Now, whether the mark is made by a pen or by some other instrument cannot make any difference, neither can it in reason make a difference that a fac-simile of the whole name was impressed on the will instead of a mere mark or X. The mark made by the instrument or stamp used was intended to stand for and represent the signature of the testator. In the case where it was held that sealing was not signing, the seals were not affixed by way of a signature.1

HUNT v. HUNT.

SUPERIOR COURT OF JUDICATURE OF NEW HAMPSHIRE. 1828. [Reported 4 N. HI. 434.]

THIS was an appeal from a decree of the judge of probate, in this county, allowing a certain instrument as the last will and testament of Arad Hunt, deceased. The said instrument was as follows: :

"$1,000.

BRATTLEBORO', April 28, 1813.

"For value received, I promised to pay Arad Hunt, or his order, one thousand dollars, within one year from this date, and interest.

"Attest: JONATHAN HUNT."

"LUTHER WELD.

There were upon the note the following indorsements:

"March 21, 1814, received one year's interest. September 14, 1814, received forty dollars. November 1, 1814, received two hundred and four dollars. May 22, 1818, received thirteen dollars and six cents."

"If I am not living at the time this note is paid, I order the contents to be paid to Arad Hunt, 2d.

Witness: ARAD HUNT."

1 But see Goods of Emerson, 9 L. R. Ir. 443 (1882).