Imágenes de páginas

c. 24.

to certain Wills

effect to any disposition or direction inserted after the Stat. 15 Vict. signature shall be made.”

Sect. 2. “ The provisions of this Act shall extend and be Act to extend applied to every Will already made, where administration already made. or probate has not already been granted or ordered by a Court of competent jurisdiction in consequence of the defective execution of such Will, or where the property, not being within the jurisdiction of the Ecclesiastical Courts, has not been possessed or enjoyed by some person or persons claiming to be entitled thereto in consequence of the defective execution of such Will, or the right thereto shall not have been decided to be in some other person or persons than the persons claiming under the Will, by a Court of competent jurisdiction, in consequence of the defective execution of such Will.” Sect. 3. “The word “Will'shall, in the construction Interpretation

of “Will." of this Act, be interpreted in like manner as the same is directed to be interpreted under the provisions in this behalf contained in the said Act of the first year of the reign of her Majesty Queen Victoria."

Sect. 4. “This Act may be cited as “The Wills Act Short title of Amendment Act 1852.' It should be observed that there is no provision in either Blank spaces in

the body of a of these Acts that the Will shall be written continuously. Will are unob

. Therefore it has been held that if a Will is otherwise duly jectionable. executed, it is no objection that it contains blank spaces in the body of it (d).

The stat. 1 Vict. enacts, that the Will may be signed What is a suf


Curt. 421. In the goods of Davies, 3 Curt. 748. Keating v. Brooks, 4 Notes of Cas. 253, 260. In the goods of Jones, 4 Notes of Cas. 532. S. C. 1 Robert. 424. In the goods of Cotton, 6 Notes of Cas, 307. S. C. 1 Robert. 638. Topham «. Topham, 2 Robert. 189. S. C. 7 Notes of Cas. 272. In re Standley, 7 Notes of Cas, 69, S. C. 1

Robert. 755. In the goods of
Amiss, 7 Notes of Cas. 274. S. C.
2 Robert. 116,

(d) Corneby v. Gibbons, 6 Notes
of Cas. 679, S. C. 1 Robert.
705, coram Dr. Lushington. In re
Corder, 1 Roberts. 669,
Kirby, 6 Notes of Cas. 693, coram
Sir H. J. Fust.

In re

[Pt. 1. Bk.


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ficient signing either by the testator, " or some other person in his presence
other person :” and by his direction.”

In the Prerogative Court, In the goods of Bailey (e), a
question was raised, upon motion, on this clause of the Act,
whether a signature by the direction of the testator can well

be made by a person who is one of the two subscribed whether the witnesses to the Will. The deceased died on the 30th of signature for the testator

November 1838: On the 8th of that month, he executed
may be by one his Will in the manner following, viz., the name of the
of the attesting
witnesses. deceased was signed by Robert Harvey, one of the subscribed

witnesses, at the foot or end, by the deceased's direction,
and in his presence, and also in the presence of Matthew
Smith, the other subscribed witness, who was present at the
same time, and who, as well as Robert Harvey, attested the
Will in the presence of the deceased : Sir Herbert Jenner
Fust was of opinion, that there had been a compliance with
the statute, and admitted the Will to probate on the affidavit
of Robert Harvey.

A contrary view of this point has been taken in an able
Treatise on this subject (f), in which it is observed, that it
could not be the intention of the Legislature to require the
testator to acknowledge the signature of his Will by another
person to the very person who had signed it for him.

However, in a late case (g), Sir H. Jenner adhered to the opinion he expressed “In the goods of Bailey," observing, that the witness in such a case attests the direction of the

testator, and that direction amounts to an acknowledgment. Whether the

A further question has arisen, as to whether, if the person signing party signing for the testator signs his own name, and should sign his not that of the testator, such signature is sufficient. In that of the case upon motion in the Prerogative Court (h), the testator testator.

died on June 4th, 1838: Being very ill, the vicar of the
parish, by the deceased's request, signed the Will for him,

own name or

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not in the testator's name, but his own; the attestation
clause being as follows, “ signed on behalf of the testator by
me, A. B., vicar of Warfield, Berks, which signature was
made for and acknowledged by the testator, in the presence
of us, who, in the presence of the testator, have hereunto set
our hands and seals. C. D., E. F.": Per curiam : (Sir H.
Jenner Fust:) “The Act allows the Will to be signed by
another person for the testator : Here this gentleman, by
the testator's request, signed the Will for him, not in the
testator's name, but using his own name: The Act does not
say that the testator's name must be used : I think this is
sufficient under the Act." Probate granted.
Where it is proved that the testator duly acknowledged a

Whether the

acknowledge signature to the attesting witnesses, it has been considered ment by the sufficient, primâ facie, without proving that the signature is signature in his handwriting, or that it was made "by some other suffices, with

out showing person in his presence and by his direction " ().

who wrote it. It is not necessary that all the sheets or papers of which Signature

where the Will a Will consists should be signed by the testator; or that consists of they should all be connected together: It is enough if they several sheets. were in the same room where the execution took place; and it must be presumed, primâ facie, that they were so (k).

testator of a


Of the Attestation of Wills and Codicils of personal estate.

It is proposed to consider this subject, with reference to Wills and codicils made before January 1st, 1838, and to which consequently the new Statute of Wills does not extend ; 2ndly, with reference to Wills and codicils made (or re-executed and republished) (1) on or after that date, and consequently within the operation of that statute.

(i) Gaze v. Gaze, 3 Curt. 456, per Sir H. Jenner Fust.

(k) Gregory v. The Queen's

Proctor, 4 Notes of Cas. 620, 639.
Post, p. 84, 85.

(1) See ante, p. 59, note (f).

1. As to Wills made before


First, as to Wills and codicils made before January 1st,
Jan. 1, 1838 : 1838.-Wills and codicils of personal estate need not any
No witnesses
to the execu-

witness of their publication (m): custody is a sufficient
tion or publie publication of them (n): although it is safer and more
cation neces.
sary : prudent, and leaves less in the breast of the Ecclesiastical

Judge, if they be published in the presence of witnesses (o).
Indeed some of the older authorities have been supposed to
lay it down, that such a publication before two sufficient
witnesses is absolutely necessary (p): But on a closer inspec-
tion of the passages cited, as containing such a doctrine, it
should seem that in some (), such publication is only
recommended ; while in others (7) it is meant, not that the
Will must be proved by two witnesses present at its publi-
cation, but that two witnesses are necessary for the due proof
of a Testament, as they are for the proof of any other fact
by the rules of the civil law (s). Still less are any subscribing
witnesses necessary for the giving full force and effect to a

mere Testament (t).
when there is But if there be an attestation clause at the foot of a testa-
an attestation
clause, and no mentary paper, the natural inference is, that the testator
witnesses, the
presumption is

meant to execute it in the presence of witnesses, and that it against the

was incomplete in his apprehension of it, till that operation
was performed; and consequently the presumption of law is
against a testamentary paper, with an attestation clause, not
subscribed by witnesses (u). This presumption is held to
be strengthened, when the instrument purports to dispose

Will :

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(m) See Allan v. Hill, Gilb. Rep. (r) Swinb. Pt. 1, s. 3, pl. 13.
260. Wright v. Walthoe, and other Godolph. Pt. 1, c. 21, s. 1.
cases cited in Limbery v. Mason, (s) See post, Pt. 1. Bk. Iv. Ch.
Com. Rep. 452. Cunningham v. III. § v., as to the necessary proof
Ross, 2 Cas. temp. Lee, 478. of a Will.

(n) Miller v. Brown, 2 Hagg. 211. (t) Brett v. Brett, 3 Add. 224.
As to the effect of proof of handwrit- (u) Scott v. Rhodes, 1 Phillim.
ing alone, see ante, p. 60, note (i), 19. Harris v. Bedford, 2 Phillim.
and post, Pt. 1. Bk. Iv. Ch. III. S v. 177. Beaty v. Beaty, 1 Add. 154,
(0) 2 Bl. Comm. 502.

Mathews v. Warner, 4 Ves. 186. (p) 1 Roberts. on Wills, 183. 5 Ves. 23. Walker v. Walker, 1

(9) Bracton, lib. 2, f. 61. Fleta, Meriv. 503; and see the note of
lib. 2, f. 125.

the learned reporter, in 1 Add.
159, 160.

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not only of personal, but also of real property (x). It is true, that in Cobbold v. Baas (y), the Court of Delegates was of opinion, that a Will, both of real and personal property, with an attestation clause unexecuted by witnesses, was, reddendo singula singulis, a perfect disposition of personal estate, and, therefore, a good Will. But this decision may be considered as overruled by those of Matheus v. Warner (2) and Walker v. Walker (a). The presumption thus raised, however, is, generally but this pre

sumption is speaking, slight, and may be repelled by slight circum- slight, and may stances (6); yet slight as it is, it must be rebutted by some slight evidence.

be repelled by extrinsic evidence, either that the testator was prevented from finishing the instrument by the act of God, or that he intended it to operate in its present form (c). In the case of Buckle v. Buckle (d), the fact of the testamentary paper being found sealed up at the death of the testator, with an appearance that he did not intend to open it again, was held sufficient to rebut the presumption, by showing that it was his intention it should operate in its present form. So a recognition of it as a Will by the testator will suffice (e). By the different Acts of Parliament creating stock in the Devise of stock

in the public

funds. (t) See ante, p. 62. In the Court considered as raising an ingoods of Reeve, Prerog. H. T. 1842, finitely slighter presumption. 1 Notes of Cas. 310.

(c) Harris v. Bedford, 2 Phillim. (y) 4 Ves. 200 in notes.

178. Beaty v. Beaty, 1 Add. 158. (3) 4 Ves. 186. 5 Ves. 23. In the goods of Hurrill, 1 Hagg.

(a) 1 Meriy. 503. See the note 252. In the goods of Wenlock, to Beaty v. Beaty, 1 Add. 159, 160. 1 Hagg. 551. In the goods of See also Jekyll v. Jekyll, 1 Cas. Thomas, 1 Hagg. 596. In the temp. Lee, 419.

goods of Edmonds, 1 Hagg. 698. (6) Stewart v. Stewart, 2 Moore, Bragge v. Dyer, 3 Hagg. 207. P. C. C. 193. Bateman v. Pen- Pett v. Hake, 3 Curt. 612. nington, 3 Moore, P. C. C. 223. (d) 3 Phillim. 323. Harris v. Bedford, 2 Phillim. 178. (e) In the goods of Jerram, 1 Thomas v. Wall, 3 Phillim. 23. Hagg. 550. See also In the goods Buckle v. Buckle, 3 Phillim. 323. of Vanhagen, 1 Hagg. 478. In In the goods of Jerram, 1 Hagg. the goods of Sparrow, ibid. 479, 550. Doker v. Goff, 2 Add. 42. where there was

an attestation In the last case there was no re- clause in the plural number, and gular attestation clause, but only only one witness. the word "witnesses," which the

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