position that he could see them, it was held that the attestation was ill (y). In a late case in the Prerogative Court (2), where the question arose on a Will made after the new Act came into operation, the witnesses had attested in the room where testator was lying in bed with the bed-curtains closed around him, so that he could not, for that reason, have seen the witnesses while they were subscribing; Sir H. Jenner Fust was of opinion that where a paper is executed by the deceased in the same room where the witnesses are, who attest it in the same room where the testator was at the time, they do attest it in the presence of the testator, though he may not actually see them sign: The Will was accordingly admitted to probate (a). But in a subsequent case in the same Court (b), where the testatrix lay with the curtains closed, and her back to the attesting witnesses when they subscribed, and it appeared that she could not by possibility have seen them do so, even if the curtains had not been closed, by reason of her inability, from her state of weakness, to have turned herself in her bed into a position in which she could have seen them sign, the same judge held that the statute was not complied with; and he distinguished the case from the former one where the testator could have seen but that the curtains were closed: And the learned judge added that in the present case there would have been no difference, in principle, if the witnesses had signed the Will down stairs. Though the testator was blind, yet it must be shown that he could have seen the witnesses sign, had he had his eyesight (c). The new statute provides that, (y) Doe v. Manifold, 1 M. & S. 249. Winchelsea v. Wauchope, 3 Russ. 441. Held, Accord. since the new Act, In the goods of Newman, Prerog. Nov. 30, 1838. 1 Curt. 914. In the goods of Ellis, 2 Curt. 395. In the goods of Colman, 3 Curt. 118. VOL. I. no form of attestation (z) Newton v. Clarke, Dec. 4th, 1839. 2 Curt. 320. (a) See also, Accord. per curiam. 2 Salk. 688, Shires v. Glascock. (b) Tribe v. Tribe, 7 Notes of Cas. 132. S. C. 1 Robert. 775. (c) In the goods of Piercy, 1 Robert. 278. G no form of attestation necessary: the witnesses may subscribe by mark : or with a guided hand : shall be necessary." It is, therefore, sufficient if the witnesses, without any attestation clause of any description, merely subscribe their names (d). But it must be observed, that unless there is an attestation clause, reciting that the formalities prescribed by the Act have been complied with, the executor cannot obtain probate in the usual way on his own oath alone; but must produce an affidavit from one of the attesting witnesses, or some other satisfactory evidence showing that the solemnities have been performed as required by the statute (e). The decisions (f) on the construction of the Statute of Frauds appear to make it clear that in the case of the witnesses, as well of the testator (g), a subscription by mark is sufficient, notwithstanding the witness be able to write. And these decisions have been followed, in the Ecclesiastical Court, in the construction of the new Act (h). So where a Will was attested by one witness in his own handwriting, (d) Bryan v. White, 2 Robert. 315. (e) See post, Pt. 1. Bk. IV. Ch. III. § III. Roberts v. Phillips, 4 E. & B. 457, by Lord Campbell. (f) Harrison v. Harrison, 8 Ves. 185. Addy v. Grix, ibid. 504. (g) See Baker v. Dening, ante, p. 67. (h) In the goods of Ashmore, 3 Curt. 756. [In this case the two attesting witnesses made their marks, opposite to which respectively the testatrix wrote their names, and by mistake a wrong surname of one of them: And Sir H. Jenner held this to be a good attestation.] See also Accord. In the goods of Amiss, 2 Robert. 116. S. C. 7 Notes of Cas. 274. But in a case where an attesting witness to a Will which had been once duly executed, attested a second execution of the same Will, by no other act than by writing the word "Bristol" (the name of the city) at the end of her name and the name of the street in which she dwelt (which she had written when she attested the former execution), it was held by Sir H. J. Fust that the latter attestation was insufficient: In the goods of Trevanion, 2 Robert, 311. The same learned judge appears to have previously allowed that the initials of the witnesses may constitute a sufficient subscription and attestation, if made by them for their signatures as attesting the execution; In the goods of Christian, 2 Robert. 110, S. C. 7 Notes of Cas. 265; though not when placed in the margin opposite alterations in the Will, so that their real purpose is to identify or attest the alterations, and not to attest the testator's reexecution of the Will: In the goods of Martin, 6 Notes of Cas. 694. S. C. 1 Robert. 712. and he also held and guided the hand of a second witness, who could not write or read, and in this way the second witness's name was written as attesting witness, the testator having desired the two to attest; this was held a sufficient attestation under the new Statute (i). But an attestation but not by seal: by sealing will not satisfy the statute (k). ture not suffi cient: It has been decided several times, that, in the case of a acknowledgment of signawitness, an acknowledgment by him of his previously subscribed signature is not a sufficient compliance with this Act (1). Accordingly, where an attesting witness to a Will, on the re-execution thereof by the testator, merely traced over his previous signature with a dry pen, Sir H. Jenner Fust held that this amounted to no more than to an acknowledgment of the signature, which had been held not to be a sufficient compliance with the statute, inasmuch as it requires the witness to subscribe the Will (m). The Act, though it requires that the testator shall sign the Will at the foot or end of it, is silent as to the part of the instrument where the witnesses shall subscribe. It was said by Dolben, J., in Lea v. Libb (n), with reference to the Statute of Frauds, that if a Will is written on different sheets of paper, and each of the three witnesses subscribe in a different sheet, it is a good subscription within that statute. If this be good law, it should seem to be equally But (i) Harrison v. Elvin, 3 Q.B. 117. S. C. 2 G. & D. 769. the one witness cannot subscribe for the other: In the goods of White, 2 Notes of Cas. 461. The desire that another should sign for a witness cannot be construed to be a subscription by that witness, even though he cannot write; for he might make his mark: In the goods of Cope, 2 Robert. 335. So in a case where the two attesting witnesses, who were able to write, held the top of the pen, whilst another person (the drawer of the Will) wrote their names, Sir H. J. Fust rejected the motion for pro- (k) In the goods of Byrd, 3 (1) Moore v. King, 3 Curt. 253, (m) Playne v. Scriven, 1 Robert. in what part of the Will they must sub scribe: attestation of a Will written on several sheets: applicable to the new Statute of Victoria. And it has been held, accordingly, in several cases in the Ecclesiastical Court, that it matters not, under that statute, in what part of the Will the attesting witnesses sign their names (p). The same question has lately been decided, after full consideration, by the Court of Queen's Bench, in the case of Roberts v. Phillips (q), upon the language of the Statute of Frauds, which requires that a Will of lands shall be "attested and subscribed" by the witnesses: It was thereupon contended, that the primary meaning of the word "subscribed" is written under and that it must here mean written under the concluding words of the Will, and signature of the testator, and so preventing any spurious additions after the execution: But the Court held that the word "subscribed" might well be understood as merely denoting a signing of the name, without any reference to the part of the paper on which the name is to be written; and that the requisition as to the Will being subscribed by the witnesses was complied with, where the witnesses, who saw it executed by the testator, immediately signed their names on any part of it at his request with the intention of attesting it.-This decision is plainly applicable to the construction of the word "subscribe" in the new Statute. No provision is contained in the Act as to Wills written on several sheets. And, therefore, in this respect also, the decisions on the construction of the Statute of Frauds appear to be authorities: And they have established that if a Will be written on several or even separate sheets, and the last alone be attested, the whole Will is well executed, provided the whole be in the room, and although a part may (p) In the goods of Davis, 3 Curt. 748. In the goods of Chamney, 1 Robert. 757. But where there were two testamentary instruments, it was held not sufficient for the witnesses to subscribe their names at the end of the first of them alone, notwithstanding they were both written on the same sheet of paper: In the goods of Taylor, 2 Robert. 411. (q) 4 E. & B. 450. not have been seen by the witnesses; and that is a question for a jury whether all the papers constituting the Will were in the room; and further, that the presumption is in the affirmative (r). Lattested papers referred to by a Will or ood day exerted be cute a part oÁ Again, the authorities with respect to the Statute of is what cases Frauds appear to apply to the new Act, upon the question, whether an unattested Will or other paper may be rendered valid as a testamentary disposition, by being referred to and adopted by a Will or codicil properly attested. Those i authorities have established, that if the testator, in a Will or codicil or other testamentary paper, duly executed, refers to an existing unattested Will or other paper, the instrument so referred to becomes part of the Will 8. But the reference must be distinct, so as to exclude the possibility of (r) Bond v. Seawell, 3 Burr. 1773. Gregory v. The Queen's Proctor, 4 Notes of Cas. 620, 639. (s) Habergham v. Vincent, 2 Ves. Jun. 228. Utterton v. Robins, 1 Ad. & Ellis, 423. Doe v. Evans, 1 Cr. & M. 42. For cases decided since the new Act in conformity with these authorities, see In the goods of Smith, 2 Curt. 796. In the goods of the Countess of Durham, 3 Curt. 57. In the goods of Dickins, ibid. 60. In the goods of Willesford, ibid. 77. In the goods of Claringbull, 3 Notes of Cas. 1. In the goods of Bacon, ibid. 644. In the goods of Smartt, 4 Notes of Cas. 38. Swete v. Pidsley, 6 Notes of Cas. 189. In the goods of Dickin, 2 Robert, 298. In the goods of Hally, 5 Notes of Cas. 510. Where a Will (dated in 1841) revoking all former Wills, referred to a clause in a former Will, Sir H. Jenner Fust refused to grant probate of so much of the former Will as was necessary to explain the latter Will: In the goods of Sinclair, 3 Curt. 746. However, where a Will, ex pressly annulling all former Wills, |