CHAP. VIII. to any disposition or direction inserted after the signature shall be made." Act to extend to certain wills already made. Intention to give effect to will. By the second section of the act it was provided that The provisions of this act shall extend and be applied to every will already made, where administration or probate has not already been granted or ordered by a court of competent jurisdiction in consequence of the defective execution of such will, or where the property, not being within the jurisdiction of the ecclesiastical courts, has not been possessed or enjoyed by some person or persons claiming to be entitled thereto in consequence of the defective execution of such will, or the right thereto shall not have been decided to be in some other person or persons than the persons claiming under the will by a court of competent jurisdiction in consequence of the defective execution of such will." Signature with intention to give effect to Will. Where the will of the deceased was written on one side of a sheet of parchment, and on the right-hand corner of the bottom of the parchment was pasted a piece of paper with a stamp impressed, the paper covering rather more than half the breadth of the parchment, but there would have been room at the left-hand corner of the bottom of the parchment for the names of the testator and attesting witnesses, which were in fact written on the paper pasted on, Cresswell, J. O., after some hesitation, granted probate, considering that the signature must be accepted as a signature made on a part of the will with intention of giving effect to the will. (a) Where a codicil written on half a sheet of paper (a) Re Gausden, 2 Sw. & Tr. 363; and see Trott v. Skidmore, 2 Sw. & Tr. 12; Cook v. Lambert, 3 Sw. & Tr. 46. occupied so much space as not to leave room for the signa- CHAP. VIII. tures of the testator and of the witnesses in the ordinary form, and beneath it were the signatures of the two witnesses, and on the right-hand side of the paper in a blank space between its edge and the codicil the signature of the testator was written at right-angles to the codicil, it was held that the codicil was duly signed.(a) Signature among words of Testimonium Clause. clause. Notwithstanding the provisions of the statute as to the Testimonium signature being placed among the words of the testimonium clause or of the clause of attestation, questions may still arise as to the sufficiency of the signature. The question in each case is, whether the testator intended when he wrote his name to execute his will or not. Where the testator read over an attestation clause containing his name, written by himself in the presence of two witnesses, who subscribed their names, and the testator then on the opposite page of the paper wrote some words, beneath which he added, "Attestation, John Walker, testator," and the names of two executors; it was held that he intended to give effect to his will by the signature of his name in the attestation clause.(b) Where the testator produced to three witnesses his (a) Re Jones, 4 Sw. & Tr. 1; 34 L. J. P. & M. 41; and see Re Powell, 4 Sw. & Tr. 34; Re Wright, 4 Sw. & Tr. 35; 34 L. J. P. & M. 104; Re Woodley, 3 Sw. & Tr. 429; Re Williams, L. R. 1 P. & D. 4; Re Coombs, ib. 302. (b) Re Walker, 2 Sw. & Tr. 354; and see Smith v. Smith, L. R. 1 P. & D. 143; Re Case- CHAP. VIII. holograph will contained in one page, with his signature in the testimonium clause in these words, "in witness whereof I, Richard Dinmore, have set my hand and seal," &c., and the testator acknowledged the paper" to be his last will," but his signature "was not more particularly referred to," and there was no seal, it was held that the will was duly executed.(a) Disposition following clause of attestation. Disposition following Clause of Attestation. Where the will of the deceased had an imperfect attestation clause, and the name of the deceased appeared written beneath the signatures of the attesting witnesses, who were both dead, and no evidence could be given as to the order in which the signatures were made, the Court, nevertheless, decreed probate of the will.(b) Where the last sentence of the testator's will, written by himself, concluded with his name, and immediately below this appeared the names of the attesting witnesses, both of whom were dead, the will was admitted to probate, Cresswell, J. O., being of opinion that the testator intended his name as it appeared to be his signature. (c) Where the will of an English lady drawn up by a notary in France was signed by her, not at the end of the will itself, but at the end of a notarial minute which immediately followed the will, detailing the circumstances and facts under which the will was made, it was held that the will was sufficiently signed. (d) And where the L, R. 3 P. & D. 211. (a) Re Dinmore, 2 Rob. 641; as to the meaning of "among the words of the testimonium clause," see Re Mann, 28 L. J. P. & M. 19. (b) Re Puddlephat, L. R. 2 P. & D. 97; and see Re Horsford, (c) Trott v. Skidmore, 2 Sw. & Tr. 12; see also Re Brown, 16 Jur. 602. (d) Page v. Donovan, Deane, 278; 3 Jur. (N. S.) 220. testator's signature was written partly across the last CHAP. VIII. line but one of the will, and entirely above the last line, with the exception of one letter which touched the last line, it was held that the will was properly signed. (a) Disposition or direction underneath or following Signature. written under Where from the obvious sequence and sense of the Disposition context it appears to the satisfaction of the Court that signature. the signature of the deceased really follows the dispositive part of a testamentary instrument though it may occupy a place on the paper literally above the dispositive parts or part thereof, such testamentary instrument will be entitled to probate. (b) Thus, where in a testamentary paper, executed by the deceased, the last sentence commenced immediately above the signature of the deceased, and was continued in three short lines to the left of it, the two last lines being somewhat below the signature, and the sentence was written before the deceased signed his name; it was held that the execution was valid, and that the last sentence would be included in the probate. (c) But where the words, "John Greata, exewere written before a will was signed, but not above the signature, it was held that they did not form part of the will. (d) And where a will contained a reference to executors "hereinafter named," but did not appoint executors, and a clause appointing executors was written immediately underneath the testator's signature; it was held that the reference in the will was not such a cutor" (a) Re Woodley, 3 Sw. & Tr. 429; and see Re Arthur, L. R. 1 P. & D. 273. (b) Re Kimpton, 3 Sw. & Tr. 427; Re Peach, 1 Sw. & Tr. 138. (c) Re Ainsworth, L. R. 2 P. & D. 151. (d) Re Greata, 2 Jur. (N. S.) 1172; Deane, 266. CHAP. VIII. reference to the clause appointing executors as a document in existence at the time of the execution as to incorporate it, or to justify the Court in receiving parol evidence that it was written before the will was signed. (a) Blank space preceding signature. Probate granted without clause. Again, where the deceased signed his name on five sheets of a testamentary paper, which consisted of six sheets, and the names of the attesting witnesses appeared on each of the five sheets, and on the sixth appeared a testimonium and attestation clause, and the names of the witnesses, but not the signature of the deceased; and the writing at the end of the fifth sheet broke off in the middle of a sentence, which was continued on the sixth sheet; the Court refused to grant probate of the five sheets as containing the last will and testament of the deceased. (b) Where a will ended in the middle of the third page of a sheet of foolscap paper, the lower half of the page being left blank, and the attestation clause and the signatures being written on the top of the fourth page, it was held that it was duly executed. (c) In some cases, where a will has contained a clause written below the signature, the Court has granted probate of the will without such clause. (d) Thus, where the (a) Re Dallow, L. R. 1 P. & (b) Sweetland v. Sweetland, 4 (c) Re Hunt, L. R. 1 P. & D. (d) Re Howell, 2 Curt. 342; Re Davis, 3 Curt, 748; Keating v. Brooks, 4 No. Cas. 253, 273; Re Jones, 4 No. Cas. 532; 1 Rob. 424; Re Cotton, 1 Rob. 658; Topham v. Topham, 2 Rob. 189; S. C. nom. Re Topham, 7 No. Cas. 272; Re Stanley, 7 No. Cas. 69; 1 Rob. 755; Re Amiss, 7 No. Cas. 274; 2 Rob. 116. |