testator, after signing his name to his will in the presence CHAP. VIII. of two witnesses, added a clause to it, the writing being squeezed into the space above and beside the signature, and immediately afterwards the witnesses signed their names, it was held that the testator did not sign or acknowledge his signature to the will as containing such clause, and that probate should issue without it. (a) Where a testator in his will, which was written by himself on the first side of a half sheet of paper, gave his property to his wife for life, and then, intending to dispose of certain freehold cottages on the death of his wife, commenced a sentence which he left incomplete, and after the incomplete sentence was an asterisk, and the words "see over," and the will, which covered the whole of the first side, was executed at the bottom of that side, and at the top of the second side was another asterisk, and a devise of the cottages to his daughter, written before the will was executed, Lord Penzance considered that the words were an interlineation, and formed part of the will, and probate was granted accordingly.(b) not attest in The witnesses must attest in the presence of the testa- Witnesses need tor, but it is not necessary that they should attest in the presence of the presence of each other. (c) From a passage in each other. the report of Casement v. Fulton(d) it would appear that the Privy Council considered a joint presence requisite at the time of subscription, but that dictum has not been acted upon. (e) Upon a re-execution it is not necessary that the Re-execution. CHAP. VIII. testator should sign his name a second time; an acknowledgment of the former signature is sufficient. (a) No attestation clause requi site. Signature of legatee written under attesta tion clause. No attestation clause of any description whatever is required under the Wills Act. "The words of the statute," said Dr. Lushington, "are plain; its object is to require the essence of a due execution, but to add as little formality as possible, in order to prevent litigation. It was asked, What is the meaning of 'shall attest'? I feel no difficulty in answering that question; 'attest' means the persons shall be present and see what passes, and shall, when required, bear witness to the facts.” (b) The absence of an attestation clause only makes a difference in the extrinsic evidence which is required to prove that the witnesses have seen the testator execute the will, and that they signed it with the intention of attesting it at his request and in his presence; and clear and satisfactory proof must be given on these points.(c) Where a will has been executed in the presence of two witnesses, and, in addition to their signatures, the signature of a third person, who is also residuary legatee, appears at the foot of the will, the Court will receive evidence to explain why such signature was written, and if it be satisfied that it was not written with the intention to attest the signature of the deceased, it will order it to be omitted in the probate.(d) (a) Re Dewell, 17 Jur. 1130. Tr. 439; 5 Jur. (N. S.) 581; 28 L J. P. & M. 132; affd. nom. Hindmarsh v. Charlton, 8 H. L. 160. (c) Roberts v. Phillips, 4 E. & B. 457, per Lord Campbell; See as to evidence, Re Diaper, 3 N. R. 215. (d) Re Sharman, L. R. 1 P. & D. 661. In some cases under the Statute of Frauds a duly attested codicil referring to an informally attested or unattested will was considered to have the effect of reexecution, so as to render the will valid. (a) In Doe v. Evans (b) Bayley, B., said: "If the codicil had not referred to the will, I should have thought that it did not set up that instrument; but if the codicil do refer to the will then I am of opinion that it does set it up. . . . The codicil expressly referring to the will shows that the intention of the testator was that both instruments should be operative."(c) Before the Wills Act an unattested codicil might, as far as personal property was concerned, be considered as part of the will, and be incorporated in the will by a subsequent codicil duly attested, republishing the will.(d) By the ninth section of the Wills Act, however, no testamentary act shall be valid unless it be in writing and executed as the act directs. Accordingly now, where a testator leaves several codicils, of which some are duly attested and some are not, a subsequent codicil duly attested and ratifying and confirming the testator's will and codicils, will only confirm the attested codicils. This was decided in Croker v. The Marquis of Hertford, (e) where Dr. Lushington, in delivering the judg (a) Bathe v. Lord Fingal, 16 Ves. 167; Carleton v. Griffin, 1 Burr. 549; Re Charingbull, 3 No. Cas. 1. (b) 1 Cr. & M. 42; 3 Tyr. 56. (c) See also Guest v. Willasey, 12 Moo. 2; 3 Bing. 614; Radburn v. Jervis, 3 Beav. 450; Burton v. Newbery, L. R. 1 Ch. Div. 234. (d) Gordon v. Lord Reay, 5 Sim. 274; Crosbie v. MacDonal, 4 Ves.610; Aaron v. Aaron, 3 De G. & S. 475; Utterton v. Robins, 1 A. & E. 423; 2 N. & M. 821; Pigott v. Wilder, 26 Beav. 10. (e) 4 Moo. P. C. C., 364; affg. Countess Ferraris v. Marquis of Hertford, 3 Curt. 468; 7 Jur. 261; 2 No. Cas. 230. These CHAP. VIII. ment of the Privy Council, said: "There is a rule of construction, which, if any but the strict and primary sense were attributed to the words used in the codicil, would be violated. That rule appears to be correctly expressed in the work of the present Vice-Chancellor Wigram, (a) as to the interpretation of wills: "When there is nothing in the context of a will from which it is apparent that the testator has used the words in which he has expressed himself in any other than their strict and primary sense, and when his words so interpreted are sensible with reference to extrinsic circumstances, it is an inflexible rule of construction that the words of the will shall be interpreted in their strict and primary sense, and in no other, although they may be capable of some popular and secondary interpretation, and although the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.' Now to apply this doctrine to the present case. The strict and primary sense of the word 'codicil' is a testamentary instrument which would per se become valid immediately on the death of the testator; such words, so interpreted, are sensible with reference to extrinsic circumstances; for there are codicils made prior to the [last codicil] duly executed, so as to come within the strict and primary sense; therefore, according to the rule of construction stated, however capable the words may be of another and popular interpretation, or however strong the intention of the testator, the strict and primary sense must be adhered to."(b) decisions are applicable, and v. Penny, 3 De G. & S. 525; (a) Wigram on Wills, 17. It is not necessary that the reference should be by CHAP. VIII. date; a reference to the contents is sufficient. Thus, Reference may where a codicil specially referred to bequests mentioned be to contents. in the paper produced as the will, which was found with the codicil loose in a box and not attached, but there were wafer marks on the two papers, leading to an inference that the papers had been annexed, and the codicil did not refer to the will by date, it was held that the paper produced was the will referred to, and that administration might pass.(a) codicil. Where there is no attested codicil to which a subse- No attested quent codicil could refer, an unattested codicil may be admitted to probate according to the following principle of construction, that "Where there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than a strict and primary sense, but his words, so interpreted, are insensible with reference to extrinsic circumstances, a court of law may look into the extrinsic circumstances of the case, to see whether the meaning of the words be sensible in any popular or secondary sense of which, with reference to those circumstances, they are capable."(b) Thus, where a testator made a codicil to his will in 1845, attested by one witness, and on the day before his death dictated a paper as "another codicil to my will," without more specifically referring to the defectively attested instrument, it was held that under the circumstances, and there being no other paper to which the testator could have referred under the No. Cas. 256; 1 Rob. 795; Re Hutton, 5 No. Cas. 256; Re Phelps, 6 No. Cas. 695; Re Willmott, 1 Sw. & Tr. 36; Re Drummond, 2 Sw. & Tr. 8; 8 W. R. 476. 56. |