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When there is a mere want of execution in a paper which is
It should here be remarked, that although it is demon-
Effect of recogs nition of im. perfect paper.
nearly perfect-it has on the face (n) Brown v. Hallett, 2 Cas. temp.
Bayle v. Mayne, 3 Phillim. 504.
Add. 399. Montefiore v. Monte
Theakston v. Marson, 4 Hagg. 298.
Castle v. Torre, 2 Moore, P. C. C
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). The effect of unfinished testamentary papers, with regard Effect of un
finished papers to 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).
With respect to the signature of a Will, made (or re-exe. 2. Signature of cuted or republished) (q), on or after the 1st day of January, after Jan. 1, 1838, it is required by the stat. 1 Vict. c. 26, s. 9, that it 1838 :
1 Vict. c. 26, “shall be signed at the foot or end thereof by the testator, or s. 9. 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
mark sufficient. 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 derisarit 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
language of both Acts in this respect is almost identical, the
and by his express directions, &c." (t)
Court being of opinion that such assumed name might
stand for, and pass as, the mark of the testator (u).
sufficient signing; for that signum was no more than a mark,
But this doctrine has been since overruled (y). Whence
signing within the statute of Victoria.
Will in the testator's own handwriting commencing, “I,
But questions of this kind do not appear to be altogether
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
be deemed said enactment, as explained by this Act, if the signature valid. 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 (6). Smee v. Bryer, 6 Notes of
Cas. 20, Suppl. xii. S. C. 1 Robert.
Stat. 15 Vict.
to give effect by such his signature to the writing signed as
(6) It is to be observed that 2 Curt. 234. In the goods of questions may still arise, as to the Gunning, 1 Robert. 459. S. C. validity of a signature placed 5 Notes of Cas. 75. In the goods among the words of the testi- of Baskett, 6 Notes of Cas. 597; monium clause, or the clause of In the goods of M‘Cullum, 7 Notes attestation, where the testator has of Cas. 125. In the goods of only written his name, without Batten, 7 Notes of Cas. 288. otherwise subscribing the Will, so (c) In order to get rid of the obthat it may be contended that it jection that the Will was not signed does not appear whether he intended at the foot or end, the Court has, in it or not for his signature to the some cases, thought itself justified in Will. See on this subject, In the regarding a portion running below goods of Chaplyn, 4 Notes of Cas. the signature as forming no part of 469. In the goods of Davis, ibid. the Will, and granting probate ex522. In the goods of Atkins, ibid. clusive of that portion. See on this 564. In the goods of Woodington, subject, In the goods of Howell, 2