parts of the will, and yet if the signature in such case is placed below them, it is at the end of the will within the meaning of the statute. So too ordinarily what is called the attestation clause when it follows the signature is no part of the will. It is not essential to the validity of a will, and as it follows the signature it cannot be taken as a part thereof. But if the testator choses to insert the attestation clause before his signature, thus making it a part of the instrument, then like any other matter contained in the will, which does not relate to the disposition of property, it becomes a part of the instrument called a will. If the testator, beneath the disposing part of the will, and before his signature, should insert the Apostles' Creed or the Lord's Prayer, it would be part of the instrument called a will, and although it would intervene between the signature and the disposing part of the will, it could not be contended that the will was not subscribed at its end."

It will be observed that the court, in deciding this case, has taken a very liberal and common-sense view of the statutory requirements. It may be said that a very technical interpretation of the statute of wills is apt to do as much harm as good, to perpetuate unintentionally as many frauds upon the testator as it may prevent.

The next requirement of the statute is that the signing by the testator shall be done in the presence of two witnesses, or else that the signature shall be acknowledged to two witnesses. To satisfy the requisite that the signing shall be done in the presence of witnesses, it is not enough that the testator and the witnesses were all together in the same room or place. The statute intended that the witnesses should see the testator sign or should have had their attention directed to the signing while the same was being done. Gardiner v. Raines, 3 Dem. 98, and cases cited.

It is not requisite however that both witnesses shall be present at the signing of the will; if one be present, and the signature is afterward acknowledged to the other, the statute will be satisfied. Hoysradt v. King- | man, 22 N. Y. 372.

As to what is a proper acknowledgment" of the testator's signature, the law is somewhat unsettled. In the determination of this question the court seem to have regarded the matter from different points of view. Some have acted on the theory that the statute was intended to protect a testator from fraud, and that whenever the circumstances showed that the intention of the statute had been observed and its ends accomplished, a substantial compliance with its requirements was to be deemed enough. Others again have treated the right to make a will as a statutory institution, springing from and living upon the statutory, and seeming to believe that testamentary rights were no favorites of the law, have refused probate to a will whenever the very letter of the law was not observed. As a matter of legal principle, it may be safely said that the first theory is more in harmony with the spirit of the law in regard to wills, which were ever its favorites, and more conducive to the prevention of fraud upon the testator's intentions.

Thus in Baskin v. Baskin, 36 N. Y. 418, as in Peck v. Cary, 27 id. 9, the court laid the following rule: "When the testator has produced a paper to which he has personally affixed his signature, requests the witnesses to attest it and declare it to be his last will and testament, he does all that the law requires. It is enough that be verifies the subscription as authorized, without reference to the form in which the acknowledgment is made; and there could be no more unequivocal acknowledgment of a signature thus affixed, than presenting it to the witnesses for attestation and publishing the paper so subscribed as his will."

That this rule is a satisfactory observation of the statute will appear on examination. What does the testator in a case like the above present to the witnesses? What he declares it to be, his will. Does not his declaring it to be his will amount to an undeniable acknowledgment that every portion thereof is his act, the signature as well as the bequests? Without the signature the instrument could not be his will. Why then does he not acknowledge his signature when he publishes as a will an instrument to which his signature must be affixed to make it what he dẻclares it to be?

The other side of the question is taken in Mitchell v. Mitchell, 16 Hun, 97, and affirmed by the Court of Appeals. 77 N. Y. 596. In this case the testator presented his will to two persons, and asked them to sign it. One of them took the paper and saw that it was a will, and saw the testator's signature thereto affixed. The testator then said: "This is my will; I want you to witness it," and both thereupon signed as witnesses. The court held that there was no acknowledgement of the signature. On appeal the decision was confirmed, by four judges voting for affirmance, and three dissenting. Here the court took the ground that a specific acknowledgment must be made. As it will be seen further on, the tendency of the court is to accept a substantial compliance with the statute as satisfactory.

In one of the latest reported decisions of the Court of Appeals on this particular point Mitchel v. Mitchel, is cited, but the decision referred to is the opinion of a court not unanimous on the question. Lane v. Lane, 95 N. Y. 499, and in the late case of Will of Higgins, 94 id. 558, the court, speaking on this point, says: The signature was plainly visible upon the instrument itself, and the testator having requested Jones and Stoker to subscribe their names to it as witnesses, and he having acknowledged the same to be his last will and testament, the statute was fully complied with in this respect within the decisions of this court,” and in Hill v. Phillips, 98 N. Y. 267, we find the court expressing its views on this point as follows: "The exhibition of the will and of the testator's signature attached thereto, and his declaration to the witness that it was his last will and testament, and his request to the witness to attest the same, were, we think, a sufficient acknowledgment of the same."

It is not rash to state that the rule in Baskin v. Baskin still continues to be and is likely to remain the rule of the Court of Appeals.

Next in the order of the requirements of the statute is the "publication" of the instrument. This must be done at the time of the signing or the acknowledgment of the signature. What is a proper "publication" has been decided frequently and uniformly and in the consideration of this question the courts have cited with considerable liberality of view, and have required but a substantial compliance of the statute. Their decisions may be generalized as follows: No exact words of publication are required, it being enough that the testator makes known to the witnesses in some way, by acts or conduct, that the instrument is intended and understood by him to be his will. Lane v. Lane, 95 N. Y. 494. If the publication be expressly made, it need not proceed from the testator himself, but may be made by some one acting for him at his request. Gilbert v. Knox, 52 N. Y. 125.

The extent to which the doctrine of "substantial compliance" with the statute has been carried, and the tendency of the court in regard thereto, may be clearly seen in the late case of the Matter of Beckett, 35 Hun, 447; affirmed by the Court of Appeals, 20 W. S. 470 (and probably 103 N. Y.). In this case the testator said nothing whatever to the witnesses at the time they signed it as to the character of the instru

ment.

The witnesses however knew its nature. One of them had conversed with the testator a day or so previous in relation to a will, and knew that the instrument presented to her was the will about which they had conversed. The other witness knew that the instrument was a will from the various circumstances attending the execution.

It was held, that if the testator communicates the necessary information in a manner capable of conveying to the minds of the witnesses his own present cousciousness that the paper being executed is his will, it is a sufficient publication of the same.

The statute next requires that the witnesses shall sign the instrument in attestation of its execution in their presence.

While this is customarily done by signing an "attestation clause," yet such a clause is not essential to the valid execution of the instrument. Re Philips, 98 N. Y. 267. The presence of a full attestation clause is however of the highest importance, as in many cases it will enable the court to infer a due execution of the instrument. It will, when it is shown that the signatures thereto are genuine, prove due execution if the witnesses are dead. Matter of Kellum, 52 N. Y. 517. And in case the witnesses forget the circumstances, and cannot testify to the details, "a regular attestation clause, if shown to have been signed by the witnesses and corroborated either by the circumstances surrounding the execution of the instrument, the testimony of the witnesses to the fact of due execution or other competent evidence has been held in many to be sufficient to establish a will signed by the testator, even against the positive evidence of the attesting witnesses to the contrary." Will of Cottrell, 95 N. Y. 335; Will of Pepoon, 91 id. 255. Yet an attestation clause alone will not prove due execution against the positive testimony to the contrary. Wooley v. Wooley, 95 N. Y. 231.

cases

* * *

The witnesses must sign at the "end" of the will (Re Hewitt, 91 N. Y. 261), and consequently must sign after the testator, not before him. Jackson v. Jackson, 39 id. 153. In this case it had been contended that the statute did not necessarily require that the witnesses should sigu after the testator, and that it would be a sufficient compliance with its requirements if the signing was all done on the eame occasion and at the same time. The court in its decision (opinion by Woodruff, J. refused to so hold, and took a strict technical stand, deciding that even if the testator were to sign immediately after the witnesses bad completed their signatures, still there would be no proper signing by the witnesses.

While such interpretation of the statute seems illiberal, it must be said that the court supported its views with a very strong argument, and that the rule it promulgated is still considered the law of this State.

Now that we have seen the law regarding the formal execution of a will, it may be necessary to state that codicils are subject to the same requirements as wills.

Wills are often executed in duplicate, each copy being as formally executed as the other, and in such a case either copy will be taken as the testator's will, aud admitted to probate as the same. It is proper however to produce both, so that they may be compared as to their similarity in all respects, and that it may appear that the will has not been revoked, as the revocation of one would revoke both. Crossman v. Crossman, 95 N. Y. 145.

Sometimes interlineations and alterations may appear on the face of the will, and the question will then arise, were they made before or after execution? There is no presumption that such interlineations were made after execution.

If it be noted in the attestation clause, as made be

fore execution, the onus probandi, that it is fraudules: or unauthorized, is thrown upon those who make any such claim. And whether or not such interlineation be noted as above, it is a question of fact for the court to decide on the evidence whether or not they were made after execution. Crossman v. Crossma ut supra.

By section 2611 of the Code of Civil procedure our courts are empowered to admit to probate wills no executed in pursuance of the requirements of our stat ute, if such wills relate to personal property, and were made by a resident of this State, without the State and within the United States, the Dominion of Canada or the kingdom of Great Britain and Ireland, and exe cuted according to the laws of the State or country in which it was made; and if made by a non-resident of the State, if such will is valid according to the law of the testator's residence.

This is however but a statutory acknowledgment of the rule of law that personal property follows the domicile of the owner. 2 Kent Comm. 439. WILLIAM J. CARR.

BROOKLYN, N. Y.

ENGLISH COURT OF APPEAL, AUG. 19, 1886.

The amount of the damage was settled by agreement.

The case was reserved for further consideration, and afterward Lopes, L. J., gave judgment for the defendants, holding that the damage was within the exception. 16 Q. B. Div. 629.

The plaintiffs appealed.

Sir Charles Russell, A. G., and Joseph Walton, for plaintiffs.

Bigham, Q. C., and J. G. Barnes, for defendants.

LORD ESHER, M. R. This case is one of considerable importance. The action is brought by the charterers of a ship, who are also the holders of bills of lading, for damage done by sea-water to a cargo of rice shipped by them and belonging to them. The case was tried before Lopes, L. J., first of all with a jury, and after certain questions had been left to the jury, and been answered by them, by himself without a jury. His judgment has been given in favor of the defendants on the ground that the damage done to the rice was the result of causes excepted in the charter party and the bills of lading.

The questions raised therefore are what is the true construction of the charter party, and the bills of lading, which are in this case identical, and what is the reasonable mode of applying that construction to the facts of this case? In the charter party and the bills of lading the exceptions are, "the act of God and the Queen's enemies and all and every other dangers and accidents of the seas, rivers and steam navigation, of whatsoever nature or kind, and errors of navigation during the voyage." The vessel was chartered by the plaintiffs to proceed to Akyab, and there load a cargo of rice, and the rice was loaded under the charter party, and bills of lading were given in the same terms as the charter party. Therefore the rice was shipped under the charter party, and under the bills of lading at Akyab. During the voyage home to Liverpool, rats guawed through a pipe communicating with a cistern in the ship, and thereby let in the seawater, which damaged the rice.

very peculiar, they are much the same as they have been from the beginning. Where documents are in daily use in mercantile affairs, without any substantial difference in form from time to time, it is most material that the construction which was given to them years ago, and which has from that time been accepted in the courts of law, and in the mercantile world, should not be in the least altered, because all subsequent contracts have been made on the faith of the decisions. Therefore whether one thinks that one would oneself have come to the same conclusion as the judges did in the beginning is immaterial. One ought to adhere strictly to the construction which has been put upon such documents.

There was a dispute at the trial as to whether the rats had been allowed to come on board by the shippers in the course of shipping the rice at Akyab; this question was left to the jury. Another question was put to the jury: "Did those on board take reasonable precautions to prevent the rats coming on board during the shipping of the cargo?" That also was at Akyab. The jury answered the first question in the negative; that is, that the rats were not brought on board. The second question they answered in the affirmative, namely, that those on board did take reasonable precautions to prevent the rats coming on board during the shipping of the cargo. The learned judge states that at the trial at Liverpool there was no dispute about the cause of the damage to the cargo; it was agreed that the damage was caused during the voyage by sea-water passing through a hole in a pipe connected with a bath-room in the vessel, such pipe being eaten through by rats. Therefore the cause of damage to the rice is, that rats ate through the pipe, thereby letting the water in. The question is, whether on the true construction of the charter party and the bills of lading, and applying it in the legal way to the facts, the cause of the damage is a peril excepted out of the bills of lading and charter party.

As

Now charter parties, bills of lading, and policies of marine insurance are documents which do not materially differ from an ordinary daily form of each. mercantile business has been enlarged they have differed from time to time, but they do not differ from day to day, and in their substantial structure, which is

Moreover, if those documents, construed as the judges have construed them for many years, have also for many years been applied in a particular way to facts similar to those which are in question at this day in a cause, it is equally material in my opinion to adhere to that application, or else mercantile business becomes wholly uncertain.

Now with regard to charter parties, bills of lading, and policies of marine insurance, there have been certain rules of construction determined upon and accepted, and there has been a distinction as to the mode of construing the first two documents and the third. With regard to policies of marine insurance a very strict rule as to the application of the doctrine of causa proxima has been adopted. It was pointed out long ago that if this doctrine of causa proxima, as against causa remota, is taken in a large sense it is equally applicable to charter parties, bills of lading, and policies of marine insurance. One would not seek either as to a charter party or a bill of lading a cause in the one sense remote, but with regard to policies of insurance the doctrine of causa proxima, or the immediate cause, has been much more strictly applied than in the other two cases; and the difference of construction has been that in a policy of marine insurance one looks strictly only to the causa proxima or immediate cause; whereas in the others one looks to that which is called in the law books the causa causans, which has been interpreted by judges to mean the real effective cause of the damage. All these documents, as I have said, were constructed originally in a very peculiar elliptical form of mercantile language. The statement that the shipowner will deliver the cargo in the same order as he has received it, excepting the act of God and so on, and all and every other dangers and perils of the seas, shows that it is a most extraordinary elliptical form. The exceptions do not describe the damage, although if the document were construed only grammatically, they would be rather supposed to describe the damage; they describe the cause of the damage, not the damage. It is necessary therefore to see whether the cause of the damage is one which is excepted.

The first cause which may produce the damage is the act of God, as it was called in the old times. I shall not now enter into a discussion, which at one time was rather rife, as to what was the exact meaning of the term "the act of God." In the older, simpler days I have myself never had any doubt but that it did not mean the act of God in the ecclesiastical and biblical sense, according to which almost everything is said to be the act of God, but that in a mercantile sense it meant an extraordinary circumstance which could not be foreseen, and which could not be guarded against. But in this case there cannot possibly be any foundation for any such suggestion as that this gnawing of a pipe by rats and letting in seawater is, within the terms of the bills of lading and charter party, the act of God. The real question is whether the cause here could be said to be a cause

a loss within the policy." I quote this case because the court there adopt the English decision to which I have referred. They say: "In 1796 the case of Rohl v. Purr, 1 Esp. 445, was tried, which involved this question, before Lord Kenyon and a special jury. His lordship said that it appeared to him a question of fact rather than of law, such as the jury were competent to decide on from the opinion on the subject adopted by the underwriters and merchants.' And 'the jury found it was not a loss within the term 'perils of the sea' in policies of insurance, and of course that the plaintiff could not recover for a total loss.' There seems to have been a general acquiescence in this decision in England, as it has never been overruled." 8 Pet. 583, 584. Then some other cases are cited, and it is said that in America the courts have adopted that finding of the English jury, and acted upon it.

I should like to notice this point, which is raised by that last case. There the question left to the jury was whether in the Pacific Ocean it was ordinary that worms should appear.

It seems to me that there must be a distinction between rats and some worms which attacked ships in the old days at sea. If by worms are meant worms which ate through the ship from the outside, those are worms which are generated by the sea and which attack from the outside, and this would immediately, I think, raise the question which was left to the jury in that case. Therefore the real ground why the loss was not held to come within the term "perils of the sea was this, that if the circumstances were the ordinary circumstances of the voyage insured then the loss was not within the terms of the policy. Then it would come within the ordinary circumstances, not the extraordinary circumstances of the voyage. Therefore to my mind it is different in a case of seaworms-worms which are peculiar to the sea-attacking the ship from the sea, which I think would be a peril of the sea, unless it were that it is an ordinary circumstance of the voyage, which either the underwriter, or the shipowner, or the owner of the cargo, ought to anticipate as an ordinary circumstance of the voyage. That question with regard to the attack of worms or barnacles can hardly arise in later days, because it was a danger to wooden ships which were not metalled. The metalling of ships was invented and applied chiefly in order to guard against that very danger, and now if a ship were sent into seas which are frequented by such worms without being metalled it would be a very strong circumstance upon which a jury would, I think, find that the ship was not seaworthy for that Voyage even when she started, it being known at the time that in the ordinary course of the voyage this danger must be anticipated. But with regard to rats it stood from the beginning, as I say, subject to the other view that a danger to the ship or cargo by rats was not caused by an excepted peril in the bill of lading or by a sea peril as insured against in the policy. Coming to later times, there is the case of Laveroni v. Drury, 8 Ex. 166; 22 L. J. (Ex.) 2, which to a certain extent is decisive in my opinion. There the question arose upon bills of lading. The cargo, which was cheese, a thing most liable to the attacks of rats, was damaged by rats. It is true that the sea-water did not come in. The only damage was the damage by the rats themselves. Pollock, C. B., said: "We agree with the learned judge, that the true question is whether damage by rats falls within the exception, and we are clearly of opinion that it does not. The only part of the exception under which it possibly could be contended to fall is as a danger or accident of the sea and navigation,' but this we think includes only a danger of the sea or navigation properly socalled, namely, one caused by the violence of the

winds and waves (a vis major) acting upon a seaworthy and substantial ship, and does not cover damage by rats, which is a kind of destruction not peculiar to the sea, or navigation, or arising directly from it, but one to which such a commodity as cheese (this is also true as to rice) "is equally liable in a warehouse on land as in a ship at sea." With regard to the observations made in the old days about a cat being on board, it was characteristic of the refined minds of those times to deal with such a matter. Pollock, C. B., who was a very practical judge, said he did not think much of the case of cats, because from the way in which cargoes are now stowed it would be very difficult for a cat to make its way in amongst the cargo; and so it would. However that question of the cats was dropped long ago, as is well known.

That case is a distinct decision that damage done to a cargo by rats, where it does not let in sea-water, is not damage caused by perils of the sea. I have dealt with the cases as to damage to the ship by rats or worms under a policy of insurance. Now I come to the case of damage to a ship or a cargo under the exception in a bill of lading, or a charter party. In the case of a bill of lading or charter party, not the last immediate cause, but the real effective cause is to be looked to, so that it must come to this if the rats, as I said before, eat within the eighth of an inch of the outside of the planks of the ship and so damage the ship, or if rats eat the cargo, or otherwise damage the cargo, this conduct of the rats is not a cause of damage which is excepted, yet if the rats go a little further and let the sea-water in, then the damage to the cargo is to be excepted. It is impossible, and it cannot be in my mind that there are such distinctions. Therefore I take the case of Laveroni v. Drury, 8 Ex. 166; 22 L. J. (Ex.) 2, to be decisive, not only of what had then to be decided, namely, that damage caused by rats is not damage caused by a peril of the sea, but also as a necessary consequence, to prove this, that if rats gnaw through a pipe and let the water in, nevertheless, as the rats are the cause, and the sea is not, and the letting in of the sea-water is only an effect of the cause, the real effective cause being the rats, what the rats do is not damage caused by perils of the sea.

I think myself the cases would made it doubtful, even in a policy of insurance, whether it ought not to be held where rats gnaw through the planks of the ship, the act is so closely immediate that the coming in of the sea-water should be treated, not as a cause at all, but as an effect, so that, even in that case there would be causa proxima as well as causa causans; but this is a matter which we need not determine on the present occasion, and which must remain open until the point is raised.

Taking the distinction of construction which has always been applied as between charter parties, bills of lading, and policies of insurance, I feel in my own mind perfectly clear that where the effective cause is the conduct of rats, as the learned judge has found here in terms, and properly found, it cannot be held that the coming in of the sea-water is the cause.

Therefore, with the greatest deference, I cannot agree with the judgment of my Brother Lopes. I have read his judgment with the utmost care, and I think he has in reality, although he did not mean to do it, acted upon this: "The immediate cause of damage in this case," he says, "was the incursion of salt water through the hole in the pipe eaten through by the rats; the effective cause of damage was the rat or rats.' 16 Q. B. Div. 035. Therefore it seems to me that he has inadvertently applied to this case the strictest rules of the causa proxima, which is only applicable to policies of insurance and is not applicable to bills of lading or charter parties. In my opinion it has been held from the beginning that in a