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mistake (t); and the paper referred to must be already written (u). Accordingly, in De Zichy Ferraris v. Lord Hertford (v), where a testator by Will, duly executed, directed his executors to pay legacies which he should give by any testamentary writing signed by him, whether witnessed or not, it was held that such a clause could not give effect to legacies bequeathed by an unattested paper made after the new Act came into operation.-Again, in the same case, it appeared that the testator, before Jan. 1, 1838 (at which date the new Act came into operation) had made a Will and several codicils, some duly executed, others only signed by the testator: After Jan. 1, 1838, he made and signed a codicil (B), but the same was not duly attested: Afterwards, by a codicil (C), duly executed and attested, he ratified and confirmed his Will and “codicils :" And it was held that the unattested codicil (B) was not so identified with the duly attested codicil (C) as to be ratified by, or incorporated with it; the word “codicils” being more completely and properly applicable to the codicils which had been made before Jan. 1, 1838 (w). But in Ingoldby v. Ingoldby (x), where a testator made a codicil to his Will in 1845, attested by one witness, and the day before his death dictated a paper (which was afterwards duly executed according to the new Act) as “another codicil to my Will,” without more specifically referring to the defectively executed instrument, it was held that both codicils were entitled to probate: And
it, and the Court has no power to enforce its production. See further on this subject, In the goods of Dickins, 3 Curt. 60.
In the goods of Darby, 4 Notes of Cas. 427. In the goods of Pewtner, ibid. 479. In the goods of Limerick, 2 Robert. 313. In the goods of Battersea, ibid. 439.
(1) Smart v. Prajean, 6 Ves. 565. 1 Cr. & M. 42. Dillon v. Harris, 4 Bligh, N. S. 321. 1 Ad. & Ellis, 423. Gordon v. Reay, 5 Sim. 274. In the goods of Sotheron, 2 Curt.
831. Collier v. Langebear, 1 Notes of Cas. 369. In the goods of Edwards, 6 Notes of Cas. 306.
(u) Wilkinson v. Adam, 1 Ves. & B. 445. 1 Ad. & Ellis, 423.
(v) 3 Curt. 468. S. C. on appeal, 4 Moo. P. C. 339, nomine Croker v. Lord Hertford.
(w) See also Accord. Haynes v. Hill, 1 Robert. 795. S. C. 7 Notes of Cas. 256. In the goods of Phelps, 6 Notes of Cas. 695.
(x) 4 Notes of Cas. 493.
Sir H. Jenner Fust distinguished, in delivering his judg. ment, this case from that of Lord Hertford, where there were codicils duly executed and codicils not duly executed; there being in the present case only one paper which came under the description of codicil, and no other paper to which the testator could have referred under that description. The decision in Lord Hertford's case of the former of the A Will cannot
create a power points above mentioned appears to have applied, under the of disposition existing law, to testamentary dispositions of all kinds, the by a future un
attested paper. doctrine which had been already established as to devises of real estate under the Statute of Frauds, viz., that a testator cannot by his Will prospectively create for himself a power to dispose of his property by an instrument not duly executed as a Will or codicil (y).
In acting upon the doctrines established by the authorities Effect of the which there has been occasion to cite in the foregoing pages, attesting wit
evidence of the no little difficulty has occurred with respect to the evidence nesses as to the
circumstances given by the subscribed witnesses of the circumstances of the attestaattending the attestation, particularly where the witnesses have been examined for the first time (as must very often happen) at a period long after the transaction. For it may be that they have no recollection at all on the subject, so that they are quite unable to affirm that the Will was executed according to the New Statute : Or it may be that one affirms and the other negatives, or that both negative, a compliance with the statute.-The result of the cases in the Prerogative Court on this subject appears to be, that although, if a party be put to proof of a Will, he must examine the attesting witnesses, it is not absolutely necessary, for the validity of the Will, to have their positive affirmative testimony that the Will was actually signed or actually acknowledged in their presence before they subscribed (2). For if the Will on the
(y) Johnson v. Ball, 5 De G. & Sm. 85, 91. See also Briggs v. Penny, 3 De G. & S. 525.
(z) Blake v. Knight, 3 Curt. 547.
face of it appears to be duly executed, the presumption is "omnia esse rite acta ;" even though there should be an attestation clause, omitting to state some essential particular, e. g. that the Will was signed in the joint presence of both witnesses (a). So in a case where an affidavit was required from the attesting witnesses, (there being no attestation clause) as to the due execution of the Will under the statute, and one of them deposed that he saw the deceased sign, in the presence of himself and the other witness, but the latter could not recollect whether the deceased signed her name in his presence or not, probate was allowed to pass on motion (b). Again, it has been held, that where the attesting witnesses depose contrary to each other (as where one swears that they attested the Will in the presence of the testator, and the other that it was attested in another room; or where one of three attesting witnesses swears that the testator signed in their presence, and the two other swear that he did not), the Court is not thereupon bound to pronounce against the validity of the Will; but may either examine other witnesses (who were present at the execution though they did not subscribe the Will) in order to arrive at the truth (c), or may, upon the mere circumstances, give credence to the affirmative rather than to the negative testimony (d). And even where both the attesting witnesses profess to remember the transaction, and state facts which show that the Will was not duly executed, (as that the testator did not make or acknowledge his signature in their joint presence, or the like), not only may this negative evidence be rebutted by the testimony of other witnesses, or by the proof of circumstances showing that the attesting
(a) Burgoyne v. Showler, 1 Robert. 5. See also Croft v. Pawlet, 2 Stra. 1109. Hands v. James, Comyns' Rep. 531. Doe v. Davies, 9 Q. B. 648. Leech v. Bates, 1 Robert. 714. S. C. 6 Notes of Cas. 699. See also in the goods of Leach, 6 Notes of Cas. 92. Hitch v. Wells, 10 Beav. 84.
(6) In the goods of Hare, 3 Curt. 45. In the goods of Attridge, 6 Notes of Cas. 597.
(c) Young v. Richards, 2 Curt. 371.
(d) Chambers v. The Queen's Proctor, 2 Curt. 433. Gove v. Gawen, 3Curt. 151, Gregory v. The Queen’s Proctor, 4 Notes of Cas. 620. Brenchley v. Lynn, 2 Robert. 441.
witnesses are not to be credited (e), but in this case also the Court may justly come to a conclusion, from the facts and circumstances which the attesting witnesses themselves state, that their memory fails them; and so the Will may be admitted to probate, notwithstanding their testimony (f). Thus, in Cooper v. Bockett (g), a Will was held by Sir H. Jenner Fust, upon the circumstances of the case, to have been signed before the witnesses subscribed, although one witness deposed that the testator signed after he and his fellow witness had subscribed, and the other witness deposed that the part of the Will where the signature of the testator was written, was blank when she, the witness, subscribed ; And this decision was affirmed in the Privy Council (h). Where, however, the attesting witnesses state facts, (not contradicted by other testimony) which demonstrate that the Will was not duly executed and there are no circumstances on which the Court can found an inference that the recollection of the witnesses is infirm on the subject, the Will must be pronounced against, notwithstanding it should be all in the handwriting of the deceased, and be signed by him and profess to be duly attested (i).
The Form of a Will.
“ There is nothing that requires so little solemnity," said Lord Hardwicke (k), “as the making of a Will of personal estate, according to the Ecclesiastical laws of this realm ; for there is scarcely any paper writing which they will not
(e) See Accord. Austen v. Willes, Bull.N.P. 264. Pike v. Badmering, cited 2 Stra. 1096, in Rice v. Oatfield, post, Pt. 1. Bk. iv. Ch. III. S v.
(f) 3 Curt. 663. See also ibid. 547. 1 Robert. 10. Baylis v. Sayer, 3 Notes of Cas. 22.
Shield v. Shield, 4 Notes of Cas. 647.
(9) 3 Curt. 648. S. C. 2 Notes of Cas. 391.
(h) 4 Notes of Cas. 685. 4 Moo. P. C. 419.
(*) Pennant v. Kingscote, 3 Curt. 642. See also 1 Robert, 10. Beach v. Clarke, 7 Notes of Cas. 120.
(k) In Ross v, Ewer. 3 Atk. 163.
Testamentary form not neces. sary.
admit as such.” Although much greater strictness seems to have prevailed in earlier times, it has been decided in a great variety of modern instances, that it is not necessary that an instrument should be of a testamentary form, in order to operate as a Will: Indeed it may be considered as a settled point, that the form of a paper does not affect its title to probate, provided it is the intention of the deceased that it should operate after his death (1). Thus, a deed poll, or an indenture (m), a deed of gift (n), a bond (o), marriage settlements (p), letters (q), drafts on bankers (r), the assignment of a bond by indorsement (s), receipts for stock and
() By Sir John Nicholl, in Mas- Phillim. 218, in Sir J. Nicholl's terman v. Maberly, 2 Hagg. 248, judgment. Marnell v. Walter, T. and by Buller, J., in Habergham v. T. 1796, cited in 2 Hagg. 247, Vincent, 2 Ves. jun. 231. See also by Sir John Nicholl. See also In Bagnall v. Downing, 2 Cas. temp. the goods of Knight, 2 Hagg. 554. Lee, 3, and Sir J. Nicholl's judg- (9) Habberfield v. Browning, 4 ment in Glynn.v. Oglander, 2 Hagg. Ves. 200, note. Repington v. Hol432, and in the King's Proctor v. land, 2 Cas. temp. Lee, 106. PassDaines, 3 Hagg. 220, 221. See also more v. Passmore, 1 Phillim. 218. Ryan v. Daniel, 1 Younge & C. Drybutter v. Hodges, E. T. 1793, Chano. Cas. 60. Doe v. Cross, 8 cited by Sir John Nicholl in 2 Q. B. 714.
Hagg. 247. Denny v. Barton, 2 (m) 2 Ves. jun. 231. Peacock v. Phillim. 575. Manly v. Lakin, 1 Monk, 1 Ves. sen. 127. Tomkyns Hagg. 130. In the goods of Dunn, v. Ladbrooke, 2 Ves. sen. 591. 1 Hagg. 488. In the goods of MilShingler v. Pemberton, 4 Hagg. ligan, 2 Robert. 108. S. C. 7 Notes 356. Consett v. Bell, 1 Y. & Coll. of Cas. 271. Where the language C. C. 569. See also Attorney-Ge- is, “I appoint you my executor, neral v. Jones, 3 Price, 360. Vin. &c.” without naming any person Abr. tit. Devise, (A. 2.) 4.
in the body of the letter, probate (n) Thorold v. Thorold, 1 Phil- will be granted to the person lim. 1, and the cases there cited. named in the address superscribed Ousley v. Carroll, cited by Lord on the outside: In the goods of Hardwicke in Ward v. Turner, 2 Wedge, Prerog. M. T. 1842. 2 Ves. sen. 440. Attorney-General Notes of Cas. 14. In the goods of v. Jones, 3 Price, 368. But see Taylor, Prerog. M. T. 1845. 4 also Tompson v. Browne, 3 M. & Notes of Cas. 290. K. 32. Sheldon v. Sheldon, 1 (r) Bartholomew v. Henley, 3 Robert. 81. 83. Majoribanks v. Phillim. 317. Gladstone v. TemHovenden, 1 Drury, 11, coram pest, 2 Curt. 650. Walsh v. GladSugden, c.
stone, 1 Phill. Ch. C. 294. Jones (6) Masterman v. Maberly, 2 v. Nicholay, 2 Robert. 288. S. C. Hagg. 235.
7 Notes of Cas. 564, (P) Passmore v. Passmore, 1 (8) Musgrave v. Down, T. T.