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. 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 (1818); Jones v. Tuck, 3 Jones, 202 (1855). In Moore v. Moore, 8 Grat. 807 (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. 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 inten ing 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 thereby and that acknowledged to the three or more witnesses at different times; again, by the present Act, all doubt on that point is removed, the witnesses must be present "at the same time." Now when I clearly find, that the object of this Act is to remove every possible doubt, taking away all latitude and discretion in its interpretation, it expressly provides that the two witnesses, who are to be present at the same time, shall attest and subscribe, can I hold that the one may attest and subscribe on one day, and acknowledge his or her signature on a subsequent day? I am inclined to think that the Act is not complied with, unless both witnesses shall attest and subscribe after the testator's signature shall have been made and acknowledged to them when both are actually present at the same time. If the one witness has previously subscribed the paper, and merely points out her signature when the testator acknowledges his signature in her presence, and in that of the other witness which latter witness alone then subscribes, that I hold not sufficient; I have no explanation why the first witness did not re-subscribe. The Act says the testator may acknowledge his signature, but does not say that the witnesses may acknowledge their subscriptions. I reject the allegation. GOODS OF PIERCY. PREROGATIVE COURT OF CANTERBURY. 1845. [Reported 1 Rob. Ecc. 278.] bed, and totally blind, The will was prepared In the presence of CHARLOTTE PIERCY died in February, 1845, having just before her death executed her will. She was very ill in but in full possession of her mental faculties. according to her directions, and read over to her. the attesting witnesses she signed her name in bed, one of them having placed her hand on that part of the paper where it was necessary for her to sign. By reason of there not being any table or other convenience in the bedroom on which the witnesses could sign their names, they all proceeded immediately to an adjoining room on the same floor, across a landing or passage, and there within view of the bedroom, the doors of both rooms being open, respectively subscribed their names. A plan of the rooms was laid before the court, and in a second affidavit it was sworn, that the testatrix, from her bed, could have seen the witnesses at the table when they signed, had she had her eyesight. Addams, on these facts, moved the court for probate. SIR HERBERT JENNER FUST. When this case was moved on a former occasion, there was no evidence to show that the testatrix could have seen the witnesses sign, had she had her eyesight, and I felt I could not place her in a better position than one who could see. It does not appear whether there were curtains to the bed; still, as it is positively sworn by two witnesses that she could, had she had her sight, have seen from her bed the witnesses subscribe, I cannot refuse this application. TRIBE v. TRIBE. PREROGATIVE COURT OF CANTERBURY. 1849. [Reported 1 Rob. Ecc. 775.] THIS was a case of proving a will of Frances Tribe, who died December 23, 1848, the same day on which the will was executed.1 SIR HERBERT JENNER FUST. . . . There is another question, namely, whether there has been a due compliance with the Act. The witnesses are at variance in their statements. Mary Tribe, the drawer of the will, and an interested witness, swears the curtains of the bed in which the testatrix lay were not closed, and that the attesting witnesses signed in the testatrix's sight; on the other hand, the attesting witnesses swear not only that the curtains were closed, but that it was from the circumstances they state physically impossible that the testatrix could have. seen them sign. I must take the statement of the attesting witnesses to be the correct version; that not only were the curtains closed, but that had they not been closed, it was impossible, from the state in which the testatrix was, for her to have turned herself in her bed so as to have seen the witnesses sign. Under this state of circumstances what difference would there have been, on principle, if the witnesses had signed the will downstairs? The decision in Newton v. Clarke, 2 Curt. 320, was, I consider, right; but were I to hold the attestation in the present case good, I should go infinitely beyond that case. I cannot consider that there has here been a due compliance with the requisites of the Statute, consequently I pronounce against the will propounded, that of December, 1848; but beyond recommending the opposing party to pay the costs, I give no order respecting them.2 Addams, in opposition to the will. Harding and R. J. Phillimore, contra. 1 The statement of facts is omitted. 2 So, Neil v. Neil, 1 Leigh, 6 (1829); and see Reed v. Roberts, 26 Ga. 294 (1858). |