When there is a mere want of execution in a paper which is
complete in other respects, the Court will presume the testa-
tor's intention to be expressed in such a paper, on its being
satisfactorily shown that the non-execution did not arise
from abandonment of these intentions so expressed (1): But
where a paper is incomplete in the body of it, the Court
must be completely satisfied by proof: ist, That the
deceased had finally decided to make the disposition of his
property expressed in the imperfect paper; 2ndly, That he
never abandoned that intention, and was only prevented by
the act of God, from proceeding to the completion of his
Will (m). The principal modern cases, in which the princi-
ples above expressed, with regard to imperfect testamentary
documents, have been laid down and acted upon, will be
found collected in the note below (n).

It should here be remarked, that although it is demon-
strated by the foregoing doctrines that when an unfinished

Effect of recogs nition of im. perfect paper.

v.

nearly perfect-it has on the face (n) Brown v. Hallett, 2 Cas. temp.
of it such strong indications of Lee, 418. Griffin v. Griffin, 4 Ves.
testamentary intention, that slight 197, note to Matthews v. Warner.
circumstances are sufficient to out- Sandford v. Vaughan, 1 Phillim. 48.
weigh the presumption against it: Devereux v. Bullock, 1 Phillim. 60.
Forbes v. Gordon, 3 Phillim. 628. Musto v. Sutcliffe, 3 Phillim. 104.
(1) 2 Add. 358.

Bayle v. Mayne, 3 Phillim. 504.
(m) Devereux v. Bullock, 1 Phil- Forbes v. Gordon, 3 Phillim, 614.
lim. 73. It is now clearly settled, Roose v. Moulsdale, 1 Add. 129.
said Sir John Nicholl, in Johnston Lord John Thynne v. Stanhope, 1
v. Johnston, 1 Phillim. 495, that in Add. 52. Antrobus v. Nepean, 1
respect to an unfinished

Add. 399. Montefiore v. Monte

paper,
though followed by sudden death, fiore, 2 Add. 354. Jameson v.
the interval must be accounted for ; Cooke, 1 Hagg. 82. Cundy v.
and it must be shown that the tes- Medley, 1 Hagg. 140. Ibid. 661.
tator adhered to the intention, but Ibid. 671. In the goods of Herne,
was prevented from finishing it. 1 Hagg. 222. In the goods of Bro-
Castle v. Torre, 2 Moore, P. C. C. derip, 1 Hagg. 385. In the goods
156, per Bosanquet, J., Accord. of Wenlock, 1 Hagg. 551. In the
See Fulleck v. Allinson, 3 Hagg. goods of Robinson, 1 Hagg. 643.
527, ante, p. 40, as to the validity Reay v. Cowcher, 2 Hagg. 249.
of a Will as an unexecuted paper,

Theakston v. Marson, 4 Hagg. 298.
in a case where insanity super-

Castle v. Torre, 2 Moore, P. C. C
venes between the preparation and 133.
the execution.

1

draft is propounded, it must be shown that the deceased was prevented by accident, necessity, or the act of God, from completing it, yet a man certainly may (in cases not within the operation of the New Wills Act), in the last moments of life, so recognise an imperfect testamentary paper, written at the distance of any number of years, as to give it effect and validity, without formal execution (o). The effect of unfinished testamentary papers, with regard Effect of un

finished papers to the total or partial revocation of prior existing Wills, will as to revoking

. be considered more conveniently hereafter, when the subject existing Wills. of revocation of Wills, generally, occurs (p).

Wills made

With respect to the signature of a Will, made (or re-exe. 2. Signature of cuted or republished) (q), on or after the 1st day of January, after Jan. 1, 1838, it is required by the stat. 1 Vict. c. 26, s. 9, that it 1838 :

1 Vict. c. 26, “shall be signed at the foot or end thereof by the testator, or s. 9. by some other person in his presence and by his direction.” It seems clear that the making of a mark by the testator signature by

mark sufficient. is a sufficient signing to satisfy the statute. It was held by the Court of Queen's Bench, in Baker v. Dening (r), that under the Statute of Frauds (s. 6), the making of a mark by a devisor, to a Will of real estate, is a sufficient signing; and that it is sufficient, without reference to any question whether he could write at the time.

So in Wilson v. Beddard (s), on the trial of an issue derisarit vel non, directed by the Court of Chancery, Parke, B., said, that it was necessary, under that statute, that the Will should be signed by the testator, but not with his name, for his mark was sufficient if made by his hand, though that hand was guided by another person; and Sir L. Shadwell, V.C., afterwards held, that this proposition was correct.

These decisions appear to be equally applicable to the statute of Victoria as to the Statute of Frauds, for the

language of both Acts in this respect is almost identical, the
words of the latter being that all devises and bequests
of lands shall be in “writing and signed by the party so
devising the same or by some other person in his presence

and by his express directions, &c." (t)
Signature Again, Wills have been admitted to probate which have
under an as-
sumed name. been signed by the testator under an assumed name, the

Court being of opinion that such assumed name might

stand for, and pass as, the mark of the testator (u).
Sealing not a In the construction of the Statute of Frauds, it was once
sufficient sig.
nature. considered that the putting of a seal by the testator was a

sufficient signing; for that signum was no more than a mark,
and sealing is a sufficient mark that it is his Will (w).

But this doctrine has been since overruled (y). Whence
it appears to follow, that sealing would not be regarded as a

signing within the statute of Victoria.
The signature The Will is required by that Act to be signed "at the foot
under the
Wills' Act is or end thereof." The Statute of Frauds merely requires,
required to be that the Will shall be “signed;” and it was held, that a
at the foot or
end.

Will in the testator's own handwriting commencing, “I,
John Styles, do declare this to be my last Will, &c.” was
sufficiently “signed" within that statute, although not sub-
scribed with his name (2). With a view, perhaps, to prevent
future controversy, as to whether a Will so signed is a com-
plete and perfect instrument, the statute of Victoria required
that the signature of the testator shall be at the foot or end
of the Will.

But questions of this kind do not appear to be altogether

excluded by the operation of this enactment: And a new ground of contest arose out of it, as to what may be considered a signing of the Will at the end or foot thereof.

Doubts arose whether a signature by the testator in the body of the testimonium or attestation clause was sufficient; and also, whether a signature below the latter clause, when it run beneath the conclusion of the Will, was a compliance with the Act. On the question, whether the Will was well executed, if there was a blank space between the conclusion of the Will and the signature of the testator, a lamentably large number of points and decisions occurred. In the earlier cases Sir H. Jenner Fust put a very liberal construction on this part of the Act. But afterwards that learned judge, in concurrence with the Judicial Committee of the Privy Council (a), felt it necessary to take a more rigid view of this enactment, on the ground that it was intended to prevent any addition being made to the Will after the deceased had executed it. And accordingly probate was refused in a great number of subsequent cases on this objection, and the intention of a great many testators unfortunately defeated.

This led to the passing of the stat. 15 Vict. c. 24, which, after reciting that, by the stat. 1 Vict. c. 26, it had been enacted, that no Will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction, proceeds to enact by sect. 1, that “every Will shall, so far only as regards the Stat. 15 Vict. position of the signature of testator, or of the person sign- When signature ing for him as aforesaid, be deemed to be valid within the to a Will shall

be deemed said enactment, as explained by this Act, if the signature valid. shall be so placed at or after, or following, or under, or beside, or opposite to the end of the Will, that it shall be apparent on the face of the Will that the testator intended

c. 24.

(a) Willis v. Lowe, 5 Notes of Cas. 428. S. C. 1 Robert. 618, note (6). Smee v. Bryer, 6 Notes of

Cas. 20, Suppl. xii. S. C. 1 Robert.
616. 6 Moo. P. C. 404,

Stat. 15 Vict.

c. 24.

a

to give effect by such his signature to the writing signed as
his Will, and that no such Will shall be affected by the
circumstance that the signature shall not follow or be imme-
diately after the foot or end of the Will, or by the circum-
stance that a blank space shall intervene between the con-
cluding word of the Will and the signature, or by the
circumstance that the signature shall be placed among the
words of the testimonium clause or of the clause of attesta-
tion (b), or shall follow or be after or under the clause of
attestation, either with or without a blank space intervening,
or shall follow or be after, or under, or beside the names or
one of the names of the subscribing witnesses, or by the
circumstance that the signature shall be on a side or page
or other portion of the paper or papers containing the Will
whereon no clause or paragraph or disposing part of the
Will shall be written above the signature, or by the circum-
stance that there shall appear to be sufficient space on or at
the bottom of the preceding side or page or other portion
of the same paper on which the Will is written to contain
the signature ; and the enumeration of the above circum-
stances shall not restrict the generality of the above enact-
ment; but no signature under the said Act or this Act shall
be operative to give effect to any disposition or direction
which is underneath or which follows it (c), nor shall it give

(6) It is to be observed that 2 Curt. 234. In the goods of questions may still arise, as to the Gunning, 1 Robert. 459. S. C. validity of a signature placed 5 Notes of Cas. 75. In the goods among the words of the testi- of Baskett, 6 Notes of Cas. 597; monium clause, or the clause of In the goods of M‘Cullum, 7 Notes attestation, where the testator has of Cas. 125. In the goods of only written his name, without Batten, 7 Notes of Cas. 288. otherwise subscribing the Will, so (c) In order to get rid of the obthat it may be contended that it jection that the Will was not signed does not appear whether he intended at the foot or end, the Court has, in it or not for his signature to the some cases, thought itself justified in Will. See on this subject, In the regarding a portion running below goods of Chaplyn, 4 Notes of Cas. the signature as forming no part of 469. In the goods of Davis, ibid. the Will, and granting probate ex522. In the goods of Atkins, ibid. clusive of that portion. See on this 564. In the goods of Woodington, subject, In the goods of Howell, 2