Effect of recognition of imperfect paper. When there is a mere want of execution in a paper which is complete in other respects, the Court will presume the testator's intention to be expressed in such a paper, on its being satisfactorily shown that the non-execution did not arise from abandonment of these intentions so expressed (1): But where a paper is incomplete in the body of it, the Court must be completely satisfied by proof: 1st, That the deceased had finally decided to make the disposition of his property expressed in the imperfect paper; 2ndly, That he never abandoned that intention, and was only prevented by the act of God, from proceeding to the completion of his Will (m). The principal modern cases, in which the principles above expressed, with regard to imperfect testamentary documents, have been laid down and acted upon, will be found collected in the note below (n). It should here be remarked, that although it is demonstrated by the foregoing doctrines that when an unfinished nearly perfect-it has on the face (1) 2 Add. 358. (m) Devereux v. Bullock, 1 Phillim. 73. It is now clearly settled, said Sir John Nicholl, in Johnston v. Johnston, 1 Phillim. 495, that in respect to an unfinished paper, though followed by sudden death, the interval must be accounted for ; and it must be shown that the testator adhered to the intention, but was prevented from finishing it. Castle v. Torre, 2 Moore, P. C. C. 156, per Bosanquet, J., Accord. See Fulleck v. Allinson, 3 Hagg. 527, ante, p. 40, as to the validity of a Will as an unexecuted paper, in a case where insanity supervenes between the preparation and the execution. (n) Brown v. Hallett, 2 Cas. temp. Lee, 418. Griffin v. Griffin, 4 Ves. 197, note to Matthews v. Warner. Sandford v. Vaughan, 1 Phillim. 48. Devereux v. Bullock, 1 Phillim. 60. Musto v. Sutcliffe, 3 Phillim. 104. Bayle v. Mayne, 3 Phillim. 504. Forbes v. Gordon, 3 Phillim. 614. Roose v. Moulsdale, 1 Add. 129. Lord John Thynne v. Stanhope, 1 Add. 52. Antrobus v. Nepean, 1 Add. 399. Montefiore v. Montefiore, 2 Add. 354. Jameson v. Cooke, 1 Hagg. 82. Cundy v. Ibid. 661. Medley, 1 Hagg. 140. draft is propounded, it must be shown that the deceased was prevented by accident, necessity, or the act of God, from completing it, yet a man certainly may (in cases not within the operation of the New Wills Act), in the last moments of life, so recognise an imperfect testamentary paper, written at the distance of any number of years, as to give it effect and validity, without formal execution (o). finished papers The effect of unfinished testamentary papers, with regard Effect of unto the total or partial revocation of prior existing Wills, will as to revoking be considered more conveniently hereafter, when the subject existing Wills. of revocation of Wills, generally, occurs (p). 2. Signature of after Jan. 1, Wills made 1838: 1 Vict. c. 26, s. 9. With respect to the signature of a Will, made (or re-executed or republished) (q), on or after the 1st day of January, 1838, it is required by the stat. 1 Vict. c. 26, s. 9, that it "shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction." It seems clear that the making of a mark by the testator signature by is a sufficient signing to satisfy the statute. It was held by the Court of Queen's Bench, in Baker v. Dening (r), that under the Statute of Frauds (s. 6), the making of a mark by a devisor, to a Will of real estate, is a sufficient signing; and that it is sufficient, without reference to any question whether he could write at the time. So in Wilson v. Beddard (s), on the trial of an issue devisavit vel non, directed by the Court of Chancery, Parke, B., said, that it was necessary, under that statute, that the Will should be signed by the testator, but not with his name, for his mark was sufficient if made by his hand, though that hand was guided by another person; and Sir L. Shadwell, V. C., afterwards held, that this proposition was correct. These decisions appear to be equally applicable to the statute of Victoria as to the Statute of Frauds, for the (0) 2 Moore, P. C. C. 156. See infra, Pt. 1. Bk. II. Ch. IV. § 1. (p) See post, Pt. 1. Bk. II. Ch. III. § II. ' (g) See supra, p. 59, note (ƒ). (s) 12 Sim. 28. mark sufficient. Signature under an assumed name. Sealing not a sufficient signature. The signature under the Wills' Act is at the foot or end. language of both Acts in this respect is almost identical, the words of the latter being that all devises and bequests of lands shall be in "writing and signed by the party so devising the same or by some other person in his presence and by his express directions, &c.” (t) Again, Wills have been admitted to probate which have been signed by the testator under an assumed name, the Court being of opinion that such assumed name might stand for, and pass as, the mark of the testator (u). In the construction of the Statute of Frauds, it was once considered that the putting of a seal by the testator was a sufficient signing; for that signum was no more than a mark, and sealing is a sufficient mark that it is his Will (x). But this doctrine has been since overruled (y). Whence it appears to follow, that sealing would not be regarded as a signing within the statute of Victoria. The Will is required by that Act to be signed "at the foot or end thereof." The Statute of Frauds merely requires, required to be that the Will shall be "signed;" and it was held, that a Will in the testator's own handwriting commencing, “I, John Styles, do declare this to be my last Will, &c." was sufficiently "signed" within that statute, although not subscribed with his name (2). With a view, perhaps, to prevent future controversy, as to whether a Will so signed is a complete and perfect instrument, the statute of Victoria required that the signature of the testator shall be at the foot or end of the Will. But questions of this kind do not appear to be altogether (t) See Accord. In the goods of Bryce, 2 Curt. 325; in which case a Will made since Jan. 1, 1838, was admitted to probate, on motion, the testatrix having signed it with a mark, and notwithstanding her name did not appear on the face of the instrument. See also in the goods of Amiss, 2 Robert. 116, post, p. 82. (u) In the goods of Glover, 5 Notes of Cas. 553. In the goods of Redding, 2 Robert. 339. (x) Lemayne v. Stanley, 3 Lev. 1. S. C. 1 Freem. 538. (y) Smith v. Evans, 1 Wils. 313. Grayson v. Atkinson, 2 Ves. Sen. 459. Ellis v. Smith, 1 Ves. Jun. 13, 15. Wright v. Wakeford, 17 Ves. 459. (z) Coles v. Trecothick, 9 Ves. 249. excluded by the operation of this enactment: And a new ground of contest arose out of it, as to what may be considered a signing of the Will at the end or foot thereof. Doubts arose whether a signature by the testator in the body of the testimonium or attestation clause was sufficient; and also, whether a signature below the latter clause, when it run beneath the conclusion of the Will, was a compliance with the Act. On the question, whether the Will was well executed, if there was a blank space between the conclusion of the Will and the signature of the testator, a lamentably large number of points and decisions occurred. In the earlier cases Sir H. Jenner Fust put a very liberal construction on this part of the Act. But afterwards that learned judge, in concurrence with the Judicial Committee of the Privy Council (a), felt it necessary to take a more rigid view of this enactment, on the ground that it was intended to prevent any addition being made to the Will after the deceased had executed it. And accordingly probate was refused in a great number of subsequent cases on this objection, and the intention of a great many testators unfortunately defeated. This led to the passing of the stat. 15 Vict. c. 24, which, after reciting that, by the stat. 1 Vict. c. 26, it had been enacted, that no Will shall be valid unless it shall be signed at the foot or end thereof by the testator, or by some other person in his presence, and by his direction, proceeds to enact by sect. 1, that "every Will shall, so far only as regards the Stat. 15 Vict. position of the signature of testator, or of the person sign- When signature ing for him as aforesaid, be deemed to be valid within the to a Will shall said enactment, as explained by this Act, if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the Will, that it shall be apparent on the face of the Will that the testator intended (a) Willis v. Lowe, 5 Notes of Cas. 428. S. C. 1 Robert. 618, note (b). Smee v. Bryer, 6 Notes of Cas. 20, Suppl. xii. S. C. 1 Robert. c. 24. be deemed valid. Stat. 15 Vict. c. 24, to give effect by such his signature to the writing signed as his Will, and that no such Will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the Will, or by the circumstance that a blank space shall intervene between the concluding word of the Will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation (b), or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the Will whereon no clause or paragraph or disposing part of the Will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the Will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said Act or this Act shall be operative to give effect to any disposition or direction which is underneath or which follows it (c), nor shall it give (b) It is to be observed that questions may still arise, as to the validity of a signature placed among the words of the testimonium clause, or the clause of attestation, where the testator has only written his name, without otherwise subscribing the Will, so that it may be contended that it does not appear whether he intended it or not for his signature to the Will. See on this subject, In the goods of Chaplyn, 4 Notes of Cas. 469. In the goods of Davis, ibid. 522. In the goods of Atkins, ibid. 564. In the goods of Woodington, 2 Curt. 234. In the goods of Gunning, 1 Robert. 459. S. C. 5 Notes of Cas. 75. In the goods of Baskett, 6 Notes of Cas. 597; In the goods of M'Cullum, 7 Notes of Cas. 125. In the goods of Batten, 7 Notes of Cas. 288. (c) In order to get rid of the objection that the Will was not signed at the foot or end, the Court has, in some cases, thought itself justified in regarding a portion running below the signature as forming no part of the Will, and granting probate exclusive of that portion. See on this subject, In the goods of Howell, 2 |