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public funds and annuities attending thereon, it is provided that any person possessed of the stock may devise the same by writing, attested by two witnesses. But the result of several cases on these Acts, which it will hereafter be necessary to notice, is that a bequest of stock, whether attested by two witnesses or not, (if made before January 1st, 1838,) is effectual to pass the subject bequeathed to the legatee ($).

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2. As to Wills, Secondly, As to the attestation of Wills and codicils &c., made on or after Jan. 1,

made on or after the 1st of January, 1838.—The stat. 1 1838 :

Vict. c. 26, s. 9, enacts, that no Will (or testament or codicil,

or any other testamentary instrument,) shall be valid unless the signature the signature shall be “made or acknowledged by the tesmust be made or acknow- tator in the presence of two or more witnesses present at the ledged in presence of two same time, and such witnesses shall attest and shall subor more wit- scribe the Will in the presence of the testator, but no form nesses present at one time,

of attestation shall be necessary." and they shall attest and sub

The Statute of Frauds required, with respect to a Will of scribe the Will · lands, that it should be “attested and subscribed in the in testator's presence : presence of the devisor, by three or four credible witnesses."

It will be observed, that besides the change from three to two in the number of witnesses, there are several important

differences between the exigencies of the two statutes. what is a suffi- The Statute of Frauds merely requires, that the witnesses cient acknow ledgment of

shall attest and subscribe the Will; and it was held in the the testator's construction of this enactment, that it was unnecessary for signature to the witnesses : the testator actually to sign his Will in the presence of the

three witnesses who subscribed the same; but that any acknowledgment before them, that it was his Will, made their attestation and subscription complete (g). It was further held, that it was sufficient if the testator acknowledged in fact, though not in words, to the witnesses that the instrument was his Will, even though such acknowledg.

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(f) Ripley v. Waterworth, 7
Ves. 440. Franklin v. Bank of
England, 1 Russ. Chan, C. 589.
Post, Pt. II. Bk. III. Ch. 1.

(9) Ellis v. Smith, 1 Ves. Jun. 11. Casement v. Fulton, 5 Moo. P. C. 138, by Lord Brougham.

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ment conveyed no intimation whatever, or means of know. ledge, either of the nature of the instrument or the object of signing; and, consequently, that if the witnesses subscribed their names as witnesses, at the testator's request, without seeing his signature, or being informed of the nature of the instrument, the statute was satisfied (h). But the new Statute requires further, that the signature of the testator “shall be made or acknowledged by the testator" in the presence of the two attesting witnesses. Soon after the Act came into operation, a doubt appears to have been sug. gested (i), whether an acknowledgment of the signature was intended to be effectual in any other case than where the signature had been made " by some other person" by the direction of the testator : But Sir H. Jenner Fust was clearly of opinion, that the statute meant, that whether the signature be made by the testator, or by some other person, if it be acknowledged by the testator in the presence of the two witnesses, the execution shall be good. A more difficult question hereupon arises, in cases where the signature is made by the testator, but not in the presence of the attesting witnesses, as to what shall be a sufficient acknowledgment of it by him in their presence. The result of the cases appears to be that where the testator produces the Will, with his signature visibly apparent on the face of it, to the witnesses, and requests them to subscribe it, this is a sufficient acknowledgment of his signature (k): But not where

(h) White v. Trustees of the Warden, 2 Curt. 334. In the British Museum, 6 Bing. 310. S. C. goods of Philpot, 3 Notes of Cas. 2. 3 M. & P. 689. Wright r. Wright, In the goods of Bosanquet, 2 Ro7 Bing. 457. S. C. 5 M. & P. 316. bert. 577. In the goods of DinJohnson v. Johnson, 1 Cr. & M, more, 2 Roberts. 641. A different 140. S. C. 3 Tyrw. 73.

view seems to have been once taken (*) In the goods of Regan, Pre- of this subject: In the goods of rog. Aug. 7, 1838. 1 Curt. 908. Rawlins, 2 Curt. 326. In the See also 3 Curt. 174.

goods of Harrison, 2 Curt. 863. It (k) Gaze v. Gaze, 3 Curt. 451. is not necessary that a testator Blake v. Knight, ibid.547. Keigwin should state to the witnesses that it v. Keigwin, ibid. 611. In re Davis, is his signature: The production of ibid. 748. In re Ashmore, ibid. a Will by a testator, it having his 756. See also In the goods of name upon it, and a request to the


they are unable to see the signature, and the testator merely calls them in to sign, without giving them any explanation of the instrument they are signing (1).

It may here be observed, that the new Statute further enacts by sect. 13, “that every Will executed in manner hereinbefore mentioned shall be valid without any other publication thereof” (m). And it has been said (n), that the

” result of this enactment is, that the testator need not inform the witnesses of the nature of the instrument they are attesting, and that even if he deceives them and leads them to believe that it is a deed, and not a Will, the execution is

good notwithstanding. the attestation must be after

Again, in the construction of the Statute of Frauds, it was the testator

held, that the Act did not require that the witnesses should has signed or acknowledged subscribe in the presence of each other, but that they might his signature to both the attest the execution separately, at different times (o). But

witnesses to attest it, would be a Curt. 181, 182, 184. S. C. nomine
sufficient acknowledgment of the Faulds v. Jackson, before the Privy
signature under the statute : 3 Council, 6 Notes of Cas. Suppl. p.
Curt. 172, 175, per Sir H. Jenner 1. In the goods of Trinder, 3 Notes
Fust. See also, ibid. 563, 564. In of Cas. 275.
the goods of Thompson, 4 Notes of (m) It seems to be doubtful whe-
Cas. 643. Leech v. Bates, 6 Notes ther any publication as distin-
of Cas. 704, by Sir H. Jenner Fust. guished from attestation, was ne-
The like was held where the testa- cessary for a Will of land under
tor had intimated to the same effect the Statute of Frauds. See the
by gestures : In the goods of Davies, judgment of Lord Denman, in Doe
2 Robert. 337. But it is not suf- v. Burdett, 4 A. & E. 14, and the
ficient merely to produce the paper observations of the judges in the
to the witnesses, where it does not same case on Error, in the Exche-
appear that the signature of the quer Chamber, 9 A. & E. 936. 1
testator was affixed to it at the Per. & D. 670, and in the House of
time. 4 Notes of Cas. 181, per Sir Lords, 6 M. & Gr. and also
H. Jenner Fust. In the goods of White v. Trustees of the British
Ashton, otes of Cas. 548. For Museum, ante, p. 77, note (h). No
another instance of an insufficient publication was ever necessary for
acknowledgment of the signature, a Will of personal estate, see ante,
see In the goods of Summers, 2 Rob.
295. S. C. 7 Notes of Cas. 562. (n) Sugden's Essay, p. 140,

(1) Ilott v. Genge, 3, Curt. 160, citing Trimmer 4. Jackson, 4 Burn.
(affirmed in Privy Council, 4 Moo. E. L. 130. British Museum v.
P. C. C. 265.) Hudson v. Parker, White, 3 Moo. & P. 689.
1 Robert. 14, See also Doe v. (0) Cook v. Parsons, Prec. Chan.
Jackson, cited per curiam in 3 184. Ellis v. Smith, 1 Ves. Jun.


p. 71.

the new statute makes it necessary that both the witnesses witnesses being to the Will shall be present, at the same time, when the same time :

present at the signature is made or acknowledged by the testator. And they must attest in the presence of the testator, though not of each other (p). And it appears to be now fully established and they must

attest in the that the Act is not complied with, unless both witnesses shall presence of attest and subscribe after the testator's signature shall have the testator, been made or acknowledged to them when both are actually each other : present at the same time (?). And if one of the witnesses has subscribed before the testator signs or acknowledges his signature in the presence of both, and the other witness alone then subscribes in the presence of the former witness and the testator, this is not sufficient, even though the former witness then expressly acknowledges the signature which he has previously made: For the Act says that the testator may acknowledge his signature ; but does not say that the witnesses may acknowledge their subscriptions (r). Thus, in Moore v. King (8), a testator signed a codicil in the presence

12. Westbeech r. Kennedy, 1 V. v. King (cited in the text above), & B. 362. See also De Zichy and indeed had been so decided in Ferraris v. Hertford, 3 Curt. 480, the Court below (the Supreme Court per Sir H. Jenner Fust.

of Calcutta). (p) 3 Curt. 659, per Sir H. Jen- (9) Moore v. King, 3 Curt. 243. ner Fust. And so held in Faulds Cooper v. Bockett, ibid. 618. 4 r. Jackson, Privy Counc. June 14, Moo. P. C. 419. See also Accord. 1815. 6 Notes of Cas. Suppl. 1. In the goods of Allen, 2 Curt. 331. But in Casement v. Fulton, Priv. In the goods of Olding, 2 Curt. Counc. July 25, 1815, 5 Moo. P. C. 865. In the goods of Simmonds, 3 C. 130, the same Court held (with- Curt. 79. In the goods of Byrd, 3 out adverting to their previous de- Curt. 117. Pennant v. Kingscote, cision) that the witnesses must 3 Curt. 643, 647. The words of attest in the presence of each other ; the Act are prospective, such witon the ground that the word "such”

"shall attest and shall subin the statute must embrace what scribe the Will in the presence of has been just said of their presence,

the testator :” 3 Curt. 660, per Sir and must mean “ the witnesses, H. Jenner Fust. &c. present at the same time.” (r) 3 Curt. 253. See also In the This case is remarkable, not only goods of Byrd, 3 Curt. 117. Casebecause it is opposed to Faulds v. ment v. Fulton, 5 Moo. P. C. C. Jackson, but also because the facts 130. were such that it might have been (8) 3 Curt. 243. decided on the principle of Moore



of a witness (his sister) who, at his desire, attested and subscribed it: On a subsequent day, when the sister and another person were present, he desired her to bring him the codicil, and requested the other person present to attest and subscribe it, saying, in the presence of both parties and pointing to his signature, “ This is a codicil signed by myself and by my sister, as you see; you will oblige me, if you will add your signature, two witnesses being necessary:” That party then subscribed in the presence of the testator and his sister, the latter, who was standing by him, pointing to her signature and saying, There is my signature, you had better place your's underneath :” She did not, however, re-subscribe : And it was held by Sir H. Jenner Fust, that the instrument was not sufficiently attested under the new

statute. what is to be It will be observed, that the provision of the Statute of considered as the presence of Frauds, requiring that the witnesses shall attest and subthe testator :

scribe in the presence of the testator, is continued in the statute of Victoria (t), and as the language in both the Acts is the same in this respect, it should seem that the decisions which have taken place as to the former will govern the construction of the latter. The result of them is, that it is not requisite that the testator should actually see the witnesses sign, but that it is sufficient if he might have seen them if he chose to look (u). Thus, where a Will was executed by the testatrix in her carriage, and the witnesses subscribed in the attorney's office, opposite to the window of which the carriage was, so that she might have seen them through the window while subscribing, it was held that the statute was satisfied (x). But where the witnesses signed in an adjoining room to that in which the testator was, and the door between them was open, but he was not in such a

(t) The Real Property Commis- 688. Davy v. Smith, 3 Salk. 395. sioners recommended (4th Report, Todd v. Winchelsea, M. & Malk. pp. 18, 19, 20) that this provision 12. S. C. 1 C. & P. 488. should be discontinued.

(x) Casson v. Dade, 1 Bro. C. C. (u) Shires v. Glascock, 2 Salk. 99.

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