that the will may be signed for the testator by some CHAP. VIII. other person in his presence, and by his direction, and there is nothing to prevent one of the attesting witnesses from making the signature. (a) The person who signs may do so in his own name, and not in that of the testator. Thus, where the will was signed by another person" on behalf of the testator by me, AB, vicar of Warfield, Berks, which signature was made for and acknowledged by the testator, in the presence of us, who, in the presence of testator, have hereunto set our hands and seals," Sir H. J. Fust said: "The act allows the will to be signed by another person for the testator. Here this gentleman, by the testator's request, signed the will for him, not in the testator's name, but using his own name; the act does not say that the testator's name must be used; I think this is sufficient under the act." (b) Where a testator disabled by paralysis desired the solicitor who prepared the will to sign for him, which he did by writing at the end, "This will was read and approved by C. F. B. by C. C. in the presence of," and then followed the signatures of the attesting witnesses, it was held that there had been a sufficient signing. (c) It is advisable where a will is signed for the testator that this fact should be mentioned in the attestation clause. (d) sheets, one signature sufficient. If a will is written on several sheets of paper one Will of several signature is sufficient. Where a will which was written on three sides of one sheet of paper, and duly attested by three witnesses, concluded by stating "that the testator had signed his name to the two first sides (a) Re Bailey, 1 Curt. 914; Smith v. Harris, 1 Rob. 262. (b) Re Clark, 2 Curt. 329; and see Re Ullersperger, 6 Jur. 156. CHAP. VIII. thereof," and it appeared that he had put his name and seal to the last only, but had omitted to sign his name to the first two sides, it was held that this was sufficient. (a) Position of signature. Publication. And it is not necessary, where the will is on several pieces of paper, that they should be all connected together; it is sufficient if they were in the same room where the execution took place, and the fact of all the detached parts being together at the time of attestation will be presumed, unless the contrary be shown. (b) Under the Statute of Frauds the position of the signa ture is immaterial. Where the testator wrote his will in his own hand, beginning, "I, John Stanley, make this my last will and testament," and did not subscribe his name, but only had the will subscribed by three witnesses in his presence, it was held that there was a sufficient signature. (c) But in Blennerhassett v. Day(d) Lord Manners held that a declaration by the testator in the attestation part of his will that lands should go to a certain person was not a sufficient devise, not being signed by the testator or by any person by his direction. The Statute of Frauds only requires that the will shall be signed. At one time it seems to have been thought that publication was also requisite. (e) In Moodie v. Reid, (f) however, Gibbs, C. J., said: "The statute of (a) Winson v. Pratt, 5 J. B. Moo. 484; 2 Brod. & B. 650; and see Marsh v. Marsh, 1 Sw. & Tr. 528; 6 Jur. (N. S.) 380. (b) 1 Jarm. on Wills, c. vi. cited by Sir H. J. Fust, in Gregory v. Queen's Proctor, 4 No. Cas. 639. (c) Lemayne v. Stanley, 3 Lev. 1; 1 Eq. Ca. Abr. 403, pl. 9; S. C. nom. Lemaine v. Staneley, 1 Freem. 538; Cook v. Parsons, Prec. Ch. 184; Hilton v. King, 3 Lev. 87; Grayson v. Atkinson, 2 Ves. S. 454. (d) 2 Ball & B. 104. (e) Ross v. Ewer, 3 Atk. 156. (ƒ) 7 Taunt. 361. 29 Car. 2, c. 3, s. 5, made certain formalities necessary to wills of land, but I know that neither the statute of H. 8 nor that of 29 Car. 2 speak of publication. A will, as such, requires no publication; be publication what it may, a will may be good without it. (a) By the Wills Act (b) it is provided "that every will executed in manner herein before mentioned shall be valid without any other publication thereof."(c) CHAP. VIII. ment before witnesses under Statute of Frauds. It is now settled that under the Statute of Frauds it Acknowledg is not necessary that the testator should sign the will in the presence of the witnesses, but that it is sufficient if he acknowledges his signature before them; and the acknowledgment may be made before each of the witnesses. separately, for the statute does not say that the testator shall sign his will in the presence of three witnesses, but requires that it shall be in writing, signed by the testator, and subscribed by three witnesses in the presence of the testator.(d) Where the testator signed and published a will in the presence of two witnesses, who attested it in presence, and then a third person was called in, and his (a) And see Doe v. Burdett, 4 A. & E. 14; 6 M. & Gr. 386; and 10 C. & F. 340; British Museum v. White, 3 Moo. & P. 689; 6 Bing. 310. (b) 1 Vict. c. 26, s. 13. (c) The result of this enactment is, that the testator need not inform the witnesses of the nature of the instrument they are attesting, and even if he deceives them, and leads them to believe that it is a deed and not a will, the execution is good notwithstanding; 1 Wms. Executors, 7th ed. 89, (d) Stonehouse v. Evelyn, 3 CHAP. VIII. the testator showing him his name told him that was his hand, and bid him witness it, which he did, and subscribed his name in the testator's presence, who two hours afterwards told him that what he had subscribed was his will, Sir Joseph Jekyll held that this was a good execution. (a) What is sufficient acknowledgment. Not only is it not necessary under the Statute of Frauds that the witnesses should see the testator sign the will, but it is not even necessary that they should see his signature or know the nature of the instrument. Lord Hardwicke seems to have doubted in one case whether a statement by the testator that the instrument was his will was sufficient; (b) but in another case before his Lordship that point was not noticed. (c) Where a testator wrote and signed his will by which he devised his real estates, and afterwards requested two persons to sign their names to it, which they did in his presence, but they did not see his signature, nor did he ever inform them of the nature of the instrument they had signed; and some time afterwards, the testator requested a third person to sign his name, which he did in the presence of the testator, who told him that the paper in question was his will, and immediately above the names of the witnesses there was written by the testator "in the presence of us as witnesses thereto," it was held that there was a sufficient attestation.(d) (a) Smith v. Codron, cited, 2 Ves. S. 455; and see Grayson v. Atkinson, ib.; Stonehouse v. Evelyn, 3 P. Wms. 254; Ellis v. Smith, 1 Ves. J. 11; Addy v. Grix, 8 Ves. 504; Westbeech v. Kennedy, 1 V. & B. 362; Wright v. Wright, 5 Moo. & P. 316; 7 Bing. 457. (b) Gryle v. Gryle, 2 Atk. 176. (c) Ellis v. Smith, 1 Ves. J. 11. (d) British Museum v. White, 3 Moo. & P. 703; 6 Bing. 310; Wright v. Wright, 5 Moo. & P. 316; 7 Bing. 457; Johnson v. Johnson. 1 Cr. & M. 140; 3 On Under the Wills Act (a) it is necessary that the testator should either sign or acknowledge his signature in the presence of both the witnesses at the same time. This point was decided in Moore v. King. (b) There the testator signed a codicil in the presence of a witness (his sister), who, at his desire, attested and subscribed it. a subsequent day, when his sister and another person were present, he desired her to bring him the codicil, and requested the other person to attest and subscribe it, saying, in the presence of both parties, and pointing to his signature, "This is a codicil signed by myself and by my sister, as you see; you will oblige me if you will add your signature, two witnesses being necessary." That party then subscribed in the presence of the testator and of his sister, the latter, who was standing by him, pointing to her signature, and saying, "There is my signature, you had better place yours underneath," she did not however re-subscribe. It was held that the instrument was not sufficiently attested. (c) If a testator signs his will in the presence of the attesting witnesses who see him in the act of writing, and they then attest, the attestation is good, although they do not see the signature, and the testator does not acknowledge it. (d) Where the testator's signature is visible to the witnesses when they sign, it is not necessary that the Tyr. 73; Gaze v. Gaze, 3 Curt. 451; 7 Jur. 803; and see the judgment of Dr. Lushington in Hudson v. Parker, 1 Rob. 14; 8 Jur. 786. (a) 1 Vict. c. 26, s. 9. (b) 3 Curt. 243; 2 No. Cas. 45; 7 Jur. 205. (c) And see Re Ayling, 1 Cur. 913; Re Allen, 2 Curt. 331; Re Simmonds, 3 Curt. 79; Re Mansfield, 1 No. Cas. 364. (d) Smith v. Smith, L. R. 1 P. & D. 143; Re Huckvale, ib. 375. |