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possibly inure to charge themselves, or any other person, and could not have been done for any other purpose whatever than simply to make them witnesses to the will. And, lastly, it appears from the same inspection, that immediately above the names of the witnesses, there was written in the handwriting of the testator these words, "In the presence of us as witnesses thereto," which do amount to a clear and unequivocal indication of the testator's intention that they should be witnesses to his will.

When, therefore, we find the testator knew this instrument to be his will; that he produced it to the three persons and asked them to sign the same; that he intended them to sign it as witnesses; that they subscribed their names in his presence, and returned the same identical instrument to him; we think the testator did acknowledge in fact, though not in words, to the three witnesses, that the will was his. For whatever might have been the doubt upon the true construction of the Statute, if the case were res integra, yet as the law is now fully settled, that the testator need not sign his name in the presence of the witnesses, but that a bare acknowledgment of his handwriting is a sufficient signature to make their attestation and subscription good within the Statute, though such acknowledgment conveys no intimation whatever, or means of knowledge, either of the nature of the instrument, or the object of the signing; we think the facts of the present case place the testator and the witnesses in the same situation as they stood where such oral acknowledgment of signature has been made, and we do therefore, upon the principle of those decisions, hold the execution of the will in question to be good within the Statute. Judgment for defendants.1

NEWTON v. CLARKE.

PREROGATIVE COURT OF CANTERBURY. 1839.

[Reported 2 Curt. 320.]

THIS was a question as to the admission of an allegation, propounding a paper as a codicil to the will of Mr. Patrick Persse, who died in June, 1839. The question was, whether the codicil was duly executed under the Statute 1 Vict. c. 26. It was alleged, that on the 8th of April, 1839, the deceased, being then confined to his bed, directed his nephew, who was the residuary legatee in the will, to prepare a codicil, increasing the legacy of a servant from £60 to £100, which he prepared accordingly, and brought to the deceased in his bedroom, which was small, the bed standing with the foot towards the fire-place. During the execution of the codicil by the deceased, the curtains of the bed were drawn open on both sides, but closed at the foot of the bed. Two small tables were in the room, one at the foot and the other at the side 1 See, accord., Osborn y. Cook, 11 Cush. 532 (1853).

of the bed. When the nephew returned with the codicil (which he had prepared in another room), into the deceased's bed-chamber, he read the same over, in the presence of White, the deceased's footman, Clarke, the servant whose legacy was increased by the codicil, and the nurse to the deceased, who in their presence and hearing, expressed his approbation thereof; the deceased then signed the codicil, in the presence of the same persons, except that one of them (White, the footman) did not actually see him sign the paper, as he was standing by the fire, where the curtains of the bed were closed. The nephew then subscribed his name, as attesting the execution, and proposed that White should do the same; previous to which, he again read the paper to White, in the presence and hearing of the testator. White then attested the codicil, signing it upon the small table placed between the foot of the bed and the fire, where the curtains were still closed, so that the testator might not have seen him sign.

The Queen's Advocate and Haggard opposed the allegation.
Addams and Robertson, in support of the allegation.

SIR HERBERT JENNER. The word "present" occurs in the Statute of Frauds, and the meaning of that word has been a subject of discussion in the cases referred to. In the present case, the first consideration is, under what circumstances the execution took place. It took place in the chamber where the deceased lay, which was small (not a large one, where he could not see what was going on), and the prob ability is, that all that was going on was heard by the deceased, the bed-curtains being open on both sides, and only closed at the foot, to screen him from the fire. All the other requisites of the Act were complied with, but it is said White could not see the testator sign his name, nor the testator see him attest his signature. To be sure it appears somewhat strange to say, that what was done by a person in the same room, and in the hearing of another person, was not done in his presence. As far as the words of the Act go, I should be of opinion, without reference to the cases, that the witness, being in the same room, was present. The object of the Act is to prevent the substitution of another paper, and that no fraud should be practised on the deceased. I should, therefore, hold that this is a sufficient attestation in the presence of the testator, and a sufficient compliance with the Act of Parliament. The several cases referred to, were questions under the Statute of Frauds, where wills were attested in a different room from that where the testator was. In one of those cases (that of Casson v. Dade, 1 Bro. Ch. Cas. 99), the doctrine of constructive presence was carried to a great length, for the testatrix executed the will in her carriage, standing at the office of her solicitor, the witnesses retiring into the office to attest it, and it being proved that the carriage was accidentally put back, so that she was in such a situation that she might see the witnesses sign the will through the window of the office; and this was held to be tantamount to being present: she had not ordered her carriage to be put back, and yet it was held that the attesta

tion was constructively in her presence. In this case, no suspicion of fraud can be suggested; the party employed the residuary legatee to prepare the codicil, and he will be a sufferer to the extent of the legacy.

I am of opinion, that under the Act, where a paper is executed by the deceased, in the same room where the witnesses are, and who attest the paper in that room, it is an attestation in the presence of the testator, although they could not actually see him sign, nor the testator actually see the witnesses sign; and if the facts pleaded in this allegation are proved to the satisfaction of the court, I must pronounce for the validity of the codicil. Allegation admitted.1 The executors afterwards took probate of the codicil.

GOODS OF COLMAN.

PREROGATIVE COURT OF CANTERBURY. 1842.
[Reported 3 Curt. 118.]

EDWARD COLMAN died at Naples, on the 2d of April, 1842. On the 25th of March, the deceased being ill in bed, two persons were called into his bed-room for the purpose of seeing him sign his will, and to attest its execution; the deceased then signed the will, in the presence of those two persons, but being apparently exhausted by the effort, the witnesses retired into an adjoining room, which communicated with the bed-room by folding doors, each of the width of about eighteen inches, and which were open at the time, being tied back by strings, and the witnesses there subscribed their names to the will on a table, which was so situated, that it was impossible for the deceased to have seen them.

Addams prayed probate.

SIR HERBERT JENNER FUST. I know of no case which would authorize the court to hold that this will was attested and subscribed by the witnesses in the presence of the deceased; had the deceased been in such a situation that he might have seen the witnesses subscribe their names, it might have been held to have been done constructively in his presence, as in the case where a lady sat in her carriage, whilst the will was attested in a solicitor's office, in which she might have seen the witnesses sign their names. Here it was impossible for the deceased to see the witnesses. I reject the motion.2

1 In Brooks v. Duffell, 23 Ga. 441 (1857), it does not clearly appear whether the testator was able to move.

2 See, accord., Doe d. Wright v. Manifold, 1 M. & S. 294 (1813); Jones v. Tuck, - 8 Jones, 202 (1855). In Moore v. Moore, 8 Grat. 307 (1851) the Court of Appeals of Virginia were equally divided on the question whether an attestation in a room adjoin.

MOORE v. KING.

PREROGATIVE COURT OF CANTERBURY. 1842.

[Reported 3 Curt. 243.]

ROBERT KING died on the 16th of August, 1842. By his will, dated the 22d of March, 1841, he appointed C. H. Moore, and his brother E. R. King to be his executors, and named his said brother his residuary legatee.

On the 8th of August, 1842, the deceased, being confined to his bed by illness, requested his sister, Mrs. Coape, to bring him materials for writing, and upon her doing so, he wrote a codicil (A) in the presence of Mrs. Coape, and she, at his request, subscribed her name thereto in his presence; no other witness was present at the time.

On the 8th of August, 1842, Sir D. Davies, the medical attendant of the deceased, paid him a visit, on which occasion the deceased requested Mrs. Coape to give him the paper (A), and showing the same to Sir D. Davies, said, "This is a codicil to my will, signed by myself and by my sister, as you will see at the bottom of the paper, you will oblige me if you will also add your signature, two witnesses being necessary." Sir D. Davies thereupon placed the paper on a chest of drawers by the bedside of the deceased, and subscribed his name thereto, Mrs. Coape, standing beside him at the time, said, pointing to her name signed at the bottom of the paper, "There is my signature you see, you had better place yours underneath."

On the 7th of November, 1842, the court was moved to admit this paper (A) to probate, the court rejected the motion, and directed the paper to be propounded. An allegation was given in by the executor, Mr. Moore, propounding the paper, and was opposed by Mr. King the other executor and residuary legatee.

R. Phillimore opposed the admission of this allegation.
H. I. Nicholl, in support of the allegation.

SIR HERBERT JENNER FUST. The question before the court is one of great importance with regard to the construction of the Will Act (1 Vict. c. 26). It turns upon the due execution of a paper bequeathing personal property, which is now regulated by the same law as regulates the disposition of real property. The duty imposed upon the court is to find its way to a due and proper construction of the whole of the Act; not of one single isolated clause, but of the entire intening that in which the testator was lying was good, when the testator could not see the witnesses, but might have seen them by leaning over the foot of his bed.

See Wright v. Lewis, 5 Rich. 212 (1851), where the testator after signing the will in the presence of the witnesses walked into the next room. In this case, however, the charge of the presiding judge seems to have been unexceptionable, and no question of law on this point to have arisen.

tion of the Legislature in passing the Act. This case must form a leading case of its class; two other cases, of a similar nature, have. been brought before the court, but only on ex parte motion, unfortunately they were cases, where the property involved in the decision was so small, as to render them unable to bear the expense of litigating the point. As far as I am able to judge, the present case differs in some respects from both those cases. In the Case of Allen, 2 Curt. 331, the paper was attested by the one witness alone present on one day, the deceased having then signed it in her presence; on a subsequent day it was signed in the presence of a second witness, and attested by that witness in the presence of the first, but the first witness was not called on to attest the second execution. The court was of opinion that the execution was not sufficient. The other case of In re Simmonds, 3 Curt. 79, was very similar. In this case, as has been observed, there is this material distinction; the deceased having in the first instance signed the paper in the presence of his sister alone, does on a subsequent day acknowledge his signature in the presence of his sister, and his sister pointed out her signature to the second witness, but I do not understand, that the deceased desired her to re-attest the acknowledgment of his signature. I admit all that has been said as to the construction of Statutes, and the interpretation put upon the Statute of Frauds as to signing by the testator, but is the same interpretation applicable to the subscription of the witnesses? It has been argued, under the present Statute, as against the admission of this allegation, that although this might have been a good subscription under the Statute of Frauds, it is not sufficient under the altered language of the present Act; on the other side, it has been said, that a construction is to be put on this Act the same as if on the Statute of Frauds; but it must be remembered, that the doubts, expressed by judges of courts of law and equity on the Statute of Frauds, led to the introduction of the present Act. It has been well said, that the 1 Vict. c. 26, is not an original Act, but an Act to amend a former law; so it is, it is an Act to amend a former law, for removing all doubts whatever existing with regard to that law, and I find in the 9th section of the new Act, a considerable departure from the language of the corresponding section (5th) of the Statute of Frauds. The language of the 9th section of 1 Vict. is expressly prohibitory, "No will shall be valid unless it be in writing, and signed at the foot or end thereof," clearly thereby intending to remove all doubts, in regard to the construction of the Statute of Frauds, as to signing by putting the testator's name at the beginning of the will;" and such signature shall be made or acknowledged by the testator," it had been formerly doubted, under the Statute of Frauds, whether an acknowledgment of the signature was sufficient, whether the will must not be actually signed in the presence of the witnesses; here again, all doubt is removed by the present section. Under the Statute of Frauds it had been held, that the witnesses need not be all present at the same time, the signature might be

VOL. IV. — - 17

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