Page images

Chap. VIII. surrender to the use of the will. (a) But the will must

contain an express or implied devise of the copyhold, as the words of the statute are, “made or to be made.”(b)

An heir-at-law may devise a copyhold estate descended to him without having been admitted, and without previous payment of the lord's fine where due on admission. (c)

The Court will not draw any inference against the existence of a custom to surrender to the use of a


Wills of per sonal estate.

Will made at different times.

The fifth section of the Statute of Frauds does not include wills of personal estate. Before the Wills Act was passed no formalities of any kind were requisite in order to make a valid will of personalty; and therefore such a will, written by a third person, and not signed by the testator, might be sufficient.(e)

It is not necessary that the whole will should be made at the same time, and where a will is made at different times an attestation clause to the part last written may be sufficient. (f) Where the testator has signed his name in the presence of witnesses at the end of several clauses of a dispositive character, apparently written at different times, the presumption is that the deceased intended to give effect to the whole of what was written at the time he so made his signature. (9) So where a will is written on several sheets of paper, it may

(a) Doe v. Ludlam, 7 Bing. (e) See further as to wills of 275.

personal estate, 1 Wms. Exors. (6) Doe v. Bird, 5 B. & Ad. 7th ed. 66; Farm. on Wills, 713.

3rd ed. 91. (c) Right v. Banks, 3 B. &

(1) Carleton v. Griffin, 1 Burr. Ad. 664,

548. (d) Doe v. Thompson, 10 Jur. (9) Re Cattrall, 3 Sw. & Tr. 28; 15 L. J. Q. B. 88.


be presumed when the witnesses only saw the last sheet Chap. VIII.

. of the will that the whole was in the room.(a)

Under the Statute of Frauds, which requires that a will of lands should be witnessed by three or four witnesses,

it has been held where the testator made a will attested by two witnesses, and afterwards a codicil also attested by two witnesses, that the will and codicil together were not sufficient to pass the lands.(b) But it may be proved that it was intended that the attestation to the codicil was also meant to apply to the will, and then the will would be sufficiently attested.(c) Neither the Statute of Frauds nor the Wills Act re- Blank spaces

in body of will. quires a will to be written continuously; and therefore a will, if otherwise well executed, may be admitted to probate, although there are blank spaces left in it, and it is not necessary that the blanks should be accounted for.(d)

Where a will is drawn with blank spaces, and these are filled in by the testator himself, the presumption of law is that they were filled in prior to execution. (e)

The signature must have been made for the purpose Signature must of authenticating the will, and if a testator begins a testa- of authenticatmentary paper, and leaves it unfinished, having lived ing will. long enough in health to have finished it if he thought proper, it will be presumed that he did not intend the instrument to be his will.(f)

be for purpose

(a) Bond v. Seawell, 3 Burr. 1775; see also Gregory v. Queen's Proctor, 4 No. Cas. 620, 639; Marsh v. Marsh, 1 Sw. & Tr. 528; Rees v. Rees, L. R. 3 P. & D. 84. (6) Lea v.

Libb, Carth. 35, 3 Salk. 395.

( ) Bond v. Seawell, 3 Burr.


(d) Re Corder, 1 Rob. 669; Corneby v. Gibbons, 1 Rob. 705 ; 6 No. Cas. 679; Re Kirby, 1 Rob. 709; 6 No. Cas. 693.

(e) Re Birch, 1 Rob. 578, per Sir H. J. Fust.

(1) Right v. Price, 1 Doug. 241 ; Griffin v. Griffin, 4 Ves.

witnesses must

Chap. VIII. A testamentary paper is not entitled to probate, unless Names of

the Court is satisfied that the names of the alleged witbe subscribed

nesses were subscribed on it for the purpose of attesting for purpose of the testator's signature.(a) attestation.

Where the deceased executed his will in the presence of two witnesses, who signed their names in his presence, one opposite the word “executor," the other opposite the word “witness," and there was

no attestation clause to the will, and the deceased intended one of the witnesses to be his executor, and asked him to sign his name in that character, it was held that such person did not sign the will exclusively as executor; but that he also intended by his signature to affirm that the deceased executed the will in his presence, and consequently that

the execution was valid. (6) Mistakes

If a will has been properly executed, it will not be where valid execution. rendered invalid by a subsequent act, such as additional

execution, done under the mistaken apprehension that the first execution was not good, nor by alterations and erasures.(c)

Where the signature of one of the witnesses was cut off, with the privity of the testatrix, for the purpose

of being re-written, and the name of the witness was rewritten for her by another person, but not in the presence of the testatrix or of the other witness, and the will was returned immediately to the testatrix, it was held that probate might be granted. (d) 197; note to Mathews v. War- 2 P. & D. 300. ner; Coles v. Trecothick, 9 Ves. (c) Re Savory, 15 Jur. 1042; 249; Walker v. Walker, 1 Mer. Re Hannam, 7 No. Cas. 437; Re 503; and see 1 Jarm. 3rd ed. 74. Redding, 2 Rob,339; 14 Jur. 1052.

(a) Re Wilson, L. R. 1 P. & D. (d) Re Tozer, 7 Jur. 134 ; see 269; Eckersley v. Platt, ib. 281. also Re Coleman, 2 Sw. & Tr.

(1) Griffiths v. Griffiths, L. R. 314.


A will is sufficiently signed within the Statute of Chap. VIII. Frauds and the Wills Act, (a) by the testator putting What is suffihis mark to it instead of signing his name, even if he is Mark.

cient signing able to write,(6) and this although his name does not appear upon the face of the instrument, (c) or although a wrong name is placed against the mark.(d) Where the testator, Thomas Douce, who could neither read nor write, put his mark, to a testamentary paper in which he was throughout described as John Douce, the Court being satisfied on affidavit that he duly executed the paper by mark animo testandi, granted probate thereof as his will.(e)

If a testator, who is unable from illness to sign his will, has his hand guided in making his mark, that is a sufficient signature. (f)

Where a testator towards the end of his life had his Stamp. usual signature engraved, so that it might be stamped on letters and other documents requiring his signature, and made two codicils, each of which was so stamped with his name by another person in his presence, and by his direction, it was held that they were duly executed. (9) And a signing by initials is also sufficient. (h)

Initials. A will may be signed under an assumed (1) or a Assumed

a (a) 1 Vict. c. 26, 8. 9.

27 L, J. P. & M. 18; 4 Jur. (6) Re Field, 3 Curt. 752 ; (N. S.) 243. Baker v. Dening, 8 A. & E. 94 (e) Re Douce, 2 Sw. & Tr. S. C. nom. Taylor v. Dening, 3 593, 31 L. J. P. & M. 172; and N. & P. 228; and see Lemayne see Re Powell, 6 No. Cas. 557. V. Stanley, 3 Lev. 1; 1 Eq. Cas.

(f) Wilson v. Beddard, 12 Abr. 403, pl. 9; S. C. nom. Sim. 28. Lemaine v. Staneley, 1 Freem, (9) Jenkins v. Gaisford, 3 Sw. 538.

& Tr. 93; 32 L. J. P, & M. 122. (c) Re Bryce, 2 Curt. 325 ; (1) Re Savory, 15 Jur. 1042; Re Amiss, 2 Rob. 116; 7 No. Re Hinds, 16 Jur. 1161. Cas. 274.

© Re Redding, 2 Rob. 339; (d) Re Clarke, 1 Sw. & Tr. 14 Jur. 1052.



Chap. VIII. former name, as in the case of a testatrix signing with

the name of a deceased husband, (a) for the name will

then be regarded as a mark. Act of signing The act of signing must be completed; and therefore must be com pleted. where a testator was unable through weakness to com

plete his signature, probate was refused.(b) If, however, a testator who is able to write may sign by a mark, and if a testator unable to write through illness may have his hand guided, it is submitted that an unfinished signature,

if properly attested, should be treated as a mark. Sealing.

In some of the early cases it appears to have been thought that sealing alone without signing was sufficient.(c) But this doctrine has since been overruled. If this were the law it would be very easy for one person to forge any man's will by only forging the names of any two obscure persons dead, for he would

have no occasion to forge the testator's hand. (d) Wrong will. Where two sisters made their wills each in favour of

the other, but by mistake at the time of execution each signed the will prepared for the other, and the mistake was not discovered till the death of one of them, when an attempt was made to correct the error by altering the Christian name of the signature, it was held that the will

was not properly signed.(e) Signature for Both the Statute of Frauds and the Wills Act provide

the testator.

(a) Re Glover, 5 No. Cas. 553; 313, per Parker, C.B.; and see 11 Jur. 1022.

Grayson v. Atkinson, 2 Ves. Sen. (6) Re Wilson, 2 Curt. 853. 459, per Lord Hardwicke; Ellis

(c) Lemayne v. Stanley, 3 v. Smith, 1 Ves.J.12, per Willis, Lev. 1; 1 Eq. Ca. Abr. 403, pl. C.J.; and Wright v. Wakeford, 9; S. C. nom. Lemaine v. Stane- 17 Ves, 459, per Lord Eldon. ley, 1 Freem. 538; Warneford (e) Anon. 14 Jur, 402; and v. Warneford, 2 Str. 764.

see Re Hunt, L. R. 3 P. & D. (d) Smith v. Evans, 1 Wils. 250.

[ocr errors]
« PreviousContinue »