CHAPTER IV. THE MODE OF EXECUTION. Fourth Rep. of BEFORE the passing of 1 Vict. c. 26, there were R. P. Comm. P. 12. s. 6. Ib. s. 19, 20. ten different laws for regulating the execution of wills under different circumstances. 1st. To pass freehold estates in fee-simple by direct de29 Ch. 2, c. 3, vise, either at law or in equity, or to pass equitable estates in such customary freeholds as were not devisable at law, the will must have been in writing, and signed and attested in the manner required by the Statute of Frauds. 2d. To pass leasehold estates, money secured on land, or personal property exceeding the value of 301., and belonging to any person other than a soldier on service, or a sailor at sea, any writing, however informal, was sufficient; or such property might pass by parol in certain cases, with the evidence required by the statute. perty, when not exceeding 301. in value, and also any property belonging to a soldier on service, or a sailor at sea, whatever might be its value, with the exception of the pay, prize-money, &c. of a seaman in the navy, or marine, might pass by parol without any restriction as to evidence. 4th. To pass the pay, prize-money, &c. 3d. Such pro of a warrant officer or seaman in the navy, or non-commissioned officer of marines, or marines, the forms required by the statute 11 Geo. 4 and 1 Will. 4, c. 20, must have been complied with. 5th. To pass freehold estates pur autre vie at law, the will must have been executed in the same manner as wills of estates in fee-simple; but such property would pass in equity, unless the heir was special occupant, by a will in a form sufficient for personal property. 6th. To pass 1 G. 1, st. 2, money in the funds by direct legal devise, the c. 19, s. 12. will must have been attested by two witnesses. 7th. Copyholds might pass, both at law and in Wagstaff v. equity, by a will in a form sufficient to pass per- W.258; AttorWagstaff, 2 P. sonalty, and perhaps, without any restriction as to ney-General v. Barnes, 2 Vern. value, in certain cases, by parol. 8th. Such custom- 598; Habergary freeholds as would pass by surrender to the ham v. Vincent, use of a will, could not, it was thought, be devised at law without a surrender; but equitable estates in customary freeholds so devisable, might be devised in the same manner as equitable estates in copyholds. 9th. To appoint a guardian, a will 12 Cha. 2, c. 24. must have been attested by two witnesses. And 2 Ves. J. 204. 10th. To exercise a power of appointment by 10 Rep. 144, a; will, it was necessary to comply with any forms Hob. 312. which might be required by the terms of the power. All these ten distinct modes of disposing of property by will, varying according to the nature or amount of the property, or the character of the devisor, are now, with the exception of the fourth partly and also of the fifth, reduced to one simple form, which seems sufficient to meet the exigencies of every case. This is accomplished by Sections 9, 10, 11, 12. Writing. Enacts, SECT. 9. 1. That every will shall be in writing. 3. That such signature shall be made or 4. That such witnesses shall subscribe the will in the presence of the testator. 1. That every will shall be in writing.-This is a general enactment for every kind of property that can be disposed of by will. It will be seen by the recapitulation, made above, of the various rules for the execution of wills of different descriptions, before the passing of this act, that writing was not necessary in several cases. The only exceptions now to the necessity of writing, are provided by the 11th and 12th sections, in favour of soldiers and mariners. The power of making a nuncupative will was very rarely exercised, and, in the present general state of education, can scarcely ever be required. Signature at end. 2. That it shall be signed at the end by the testator, or by some other person in his presence, and by his direction. This provision, that the signature of the testator shall be at the end, is introduced in conformity to the usual practice in signing all written instruments, and in order to cause wills to be made in a formal manner, and so avoid the uncertainties and inconveniences which are consequent upon imperfect papers being considered wills. SECT. 9. 18 Ves. 183. Formerly, if the testator's name was written Lemayne v. by himself, in any part of a will, either at the Stanley, 3 Lev. 1; Morison v. beginning or the end, it was considered a suffi- Turnour, cient signing within the statute. And three of the judges in the case of Lemayne v. Stanley, were of opinion that sealing by itself was a sufficient signing within the Statute of Frauds, which doctrine was assented to in Warneford v. Warne- 2 Stra. 764. ford. Yet this was afterwards controverted by the judges in several cases. [Smith v. Evans, 1 Wils. 313; Ellis v. Smith, 1 Ves. J. 11; Harrison v. Harrison, 8 Ves. 185; Abdy v. Grix, 8 Ves. 504; Wright v. Wakeford, 17 Ves. 459.] But the name must have been inserted in such a Stokes v. Moore, manner as to give authenticity to the whole in- 1 P. W. 771. strument. And where the testator signed the two first sheets of his will, with the intention of sign ing the remaining sheets, which he was prevented by sickness from doing, Lord Mansfield held Right v. Price, that the will was not duly executed. The signaDoug. 241. ture might be either the name of the testator, or his mark; and this remains unaltered. D SECT. 9. 3d. That such signature shall be made or Attestation. acknowledged in the simultaneous presence of two witnesses. Ellis v. Smith, 1 Ves. J. 11; Westbeech v. 254. Two material alterations in the law are here effected. Firstly, that the witnesses shall in all cases be two in number; secondly, that they shall Cook v. Parsons, be both present together. For the due execution Prec. Cha. 184; of a will, according to the Statute of Frauds, it was held not to be requisite that the witnesses Kennedy, 1 Ves. should attest in the presence of each other, or that & B. 362; one should be seen by another. It was sufficient Stonehouse v. Evelyn, 3 P.W. if the testator acknowledged his signature, or his will, at three several times to the three several British Museum witnesses: moreover it was enough, if, without v. White, 3 Mo. & Pay. 689. acknowledging his signature, and without the witnesses knowing that it was his will, he asked them to sign it. The attestation of witnesses to wills of personal estate has been long considered deCoxe v. Bassett, sirable. Lord Alvanley said, he concurred in the 3 Ves. 160. opinion dropped at the bar, that it was almost absolutely necessary that the legislature should come to some regulation as to the form necessary for wills of personal as well as real estate, from the habit the Spiritual Court had got into, of granting probate of all the loose papers that could be found, and sending them to the Court of ChanBeauchamp v. cery to be construed. Again Lord Loughborough: "It is really very unfortunate that there is no solemnity necessary for wills of personal estate.” And Lord Eldon, in Matthews v. Werner, with reference to a paper in that cause, said, "If such Earl of Hardwicke, 5 Ves. 285. 8 Ves. 208. |