Stephen Farmer deposed, that on the 8th of February he saw the deceased, who was then ill in bed. The deceased sent him to Dudley for a will stamp. He returned from Dudley, and told the deceased that a stamp was not required, plain paper would do. The deceased told his wife to fetch some paper, which she did. The deceased then asked Mr. Homer, who was present, to write a will for him; but Mr. Homer said he had never seen or written a will, and did not understand it. The deceased asked him to write down what he, the deceased, told him. That was done. It was read over by deceased, who then called his wife to hold him up, which she did; and he made his mark. The deceased then gave the paper to Homer, and told him to sign his name, which he did, and then deponent signed his name. Deponent further said, that he saw deceased make his mark, and it was made in the presence of himself and Homer. The paper was afterwards sent to Tromans, who was not in the room; and when it was brought back deponent saw Tromans' name upon it. On cross-examination, he further said, he saw the word "executors " written. Deceased told Homer he wanted him to be one of his executors. He said so both before and after the will was signed. He wished to have two executors, Homer and Tromans. He understood Homer signed as executor by the desire of deceased. Referring to the word "witness," deponent added, he considered Homer as the other witness. He himself signed also as witness. It occurred about eight in the evening.

James Frederick Homer deposed that the body of the will and the word "excetrs." was in his handwriting; but he could not say whether he wrote the latter word before or after the deceased had made his mark. Deceased spoke to him about being executor as soon as he entered the room. Tromans was to be executor also. After deceased had put his mark, he told deponent to sign as executor, which he did. After Farmer had signed, deceased *told the deponent to take it to Tromans, [302 who was ill. Tromans signed his name, and deponent took the paper back to the deceased.

Mrs. Griffiths also deposed that her husband told Homer to write his name as executor, and then gave the paper to Farmer to write his name as a witness.

Nov. 3. Huddleston, Q. C., Dr. Tristram, and Loxdale Warren, appeared for the plaintiff. The requirements of the statute have been satisfied. The deceased made his mark in the presence of two witnesses; who thereupon signed their names in his presence. Even if Homer signed his name as executor, he may also be taken to have signed it as a witness, to have attested the signature as the testator's signature to the will.

Ballantine, Serjt., and Inderwick, for the defendants. On the face of the paper it is obvious that the will was not duly executed. The word "executors" in the plural stands opposite two of the names; "witness" in the singular, opposite the name of Farmer. It is clear, therefore, it was not intended there should be more than one witness. If Homer signed as executor only, under the misapprehension that it is necessary that an executor should do so, the will is invalid.

LORD PENZANCE. As no case has been cited on either side, I must take time to look into them, for it is advisable in these matters of execution, that the Court should follow the previous decisions. The statute requires the witnesses shall attest, and shall subscribe; if, therefore, a witness puts his name on the paper alio intuitu, it will not suffice. On the other hand, the Court ought not to be quick to conclude that, because the testator does not ask the witness in so many words to attest his signature, it is, therefore, not a good execution.

Nov. 14. LORD PENZANCE. I took time to consider whether, under the circumstances disclosed by the evidence, this will was duly executed. It is signed by the testator in the presence of two witnesses, and they both signed their names in his presence; but opposite the name of one of these witnesses, appears the 303] word *" executors" and opposite that of the other "witness a third person afterwards signed his name, opposite the word "executors;" but that name was not written in the presence of testator. There is no further attestation clause. On the one side it was contended that the testator duly executed his will in the presence of two witnesses present at the same time, who subscribed in his presence; on the other side it is said the will was not duly executed; because one of the witnesses signed as executor only, and not as a witness to the

execution of the will. I am inclined to think the question revolves itself into one of fact. Did he sign as an executor only, or as a witness also? I have tried to find cases in illustration of the proposition that it is necessary that a witness to the execution of a will shall sign as witness; but I have not met with any in point. The statute says, that the witness shall attest, and shall subscribe the will; which must mean that he shall put his name to the will as attesting the fact that he saw the testator sign it; that is, he must put his name as witness. In a case before me: In the goods of Sharman (1), I said, “ When a testator has signed his name in the presence of two witnesses, and at his request they attest his signature, the execution is complete; and if a third person afterwards adds his name the Court will not come to the conclusion without cogent evidence that that third person signed as an attesting witness." I then investigated the question whether the third person signed as witness, or whether the execution was completed without his signature. Making the same inquiry in this case, I come to the conclusion that Homer did sign as witness. According to the evidence of Farmer, the deceased asked his wife to hold him up in bed; the deceased then signed with a cross, and told Homer to sign, which he did. Prima facie from this evidence it would appear Homer signed as a witness. On cross-examination, Farmer said that Homer signed as executor and as witness also. It may have very well been that Homer was called upon to sign as witness as well as executor, and that he considered he signed in both characters. Homer himself gave evidence that the testator asked him to sign as executor: in cross-examination, he said the testator's words were, "he asked me to sign." The *Court is of opinion that Homer did [304 not sign exclusively as executor; but that by his signature he meant to affirm that the deceased executed the will in his preProbate may issue. The costs of all parties to be paid out of the deceased's estate.

sence.

Attorneys for plaintiff: Mackeson, Taylor, & Arnould.
Attorneys for defendants: Emmets, Watson & Emmet.

(1) Law Rep., 1 P. & M., 661.

1871

In the Goods of Foster.

Nov. 21, 1871.

IN THE GOODS OF G. H. FOSTER.

[Law Reports, 2 Probate and Divorce, 304.]

Will-Executor substituted.

The deceased, by his will, appointed his wife sole executrix, and in default of her, two other persons to be executors. The wife took probate, and died :— Held, that such other persons were, on the death of the wife, entitled to ad minister the estate of the deceased as substituted executors.

GEORGE HOLGATE FOSTER, late of the Holme, Regent's Park, Middlesex, died on the 1st of December, 1858, having made a will bearing date the 24th of July, 1857. In this will appears the following clause:-"I do hereby authorize my executrix, or executors hereinafter named, to continue any security or securities which I may die possessed of for any term in their discretion not exceeding five years from my death, notwithstanding any of the trusts aforesaid in this my will contained; and I nominate and appoint my said wife sole executrix of this my will, and, in default of her, I nominate and appoint the said John Knowles and Richard Foster to be executors of this my will; and I nominate and appoint my said wife, the said John Knowles and Richard Foster, and the said Christopher Proctor trustees of this my will."

On the 23d of December, 1858, probate of this will was granted to the widow, Maria Isabella Foster, who died on the 25th of May, 1871, leaving part of the deceased's estate unadministered. She made a will in which she named several executors, who took probate thereof on the 5th of July, 1871.

The draft of the deceased's will prepared by his attorney, did not contain the appointment of John Knowles and Richard Foster to be executors, that was added by the deceased in copy305] ing out the *will. John Knowles and Richard Foster were nephews of the deceased, and for many years before his death had been connected with him in business, and on his retirement carried on the business.

Dr. Swaybey applied to the Court to decree probate to John Knowles and Richard Foster as the substituted executors named

by the deceased in default of his wife. A default has arisen by the death of the wife. The executors of the wife consent to the motion. He referred to In the goods of Henrietta Johnson, deceased. (1)

LORD PENZANCE. This is a question of construction as to what the testator meant when he said, "I appoint my wife sole executrix, and, in default of her, I appoint John Knowles and Richard Foster to be executors." John Knowles and Richard Foster were persons whom it was reasonable the testator should appoint as executors; but he chose to give a preference to his wife, as I understand the will, so long as she was able to act. The question is, whether the substitution was to take place only in the event of her not acting at all, or whether, as has happened, in the case of her death, after having taken probate. The Court will not construe the words of a will in a technical spirit, but will endeavor rather to carry out the real object of the testator. I think it is reasonable to hold that the. testator intended that his wife should administer so long as she could; and that, in the event of her death either before or after taking probate, he substituted other persons. I am prepared to make the grant.

Attorneys: Tatham & Procter.

June 6, 1871.

*NEWSOME V. NEWSOME.

Law Reports, 2 Probate and Divorce, 306.

[306

Dissolution-Effect of Agreement not to take Proceedings for Divorce — Adultery subsequent to Agreement — Condonation.

A wife knowing that her husband had been guilty of incestuous adultery with her sister, signed an agreement that she would forgive him, and would not take proceedings against him on account of such incestuous adultery, in consideration of his retirement from a then subsisting partnership in business with her father and brother. It was further agreed that they should not live together, but that they should see each other from time to time. The agreement also contained this clause: "The agreement or contract binds me (the wife) only so long as you remain true to me in love and duty." After the date of the agreement the husband () 1 Sw. & Tr., 17; 27 L. J. (P. M. & A.), 9.