Act of March 3, 1819-January 1, 1820. R. C. ch. 104. 'or she' hath, or at the time of his or her' death, shall have, (c) of, in, or to lands, tenements or hereditaments, or annuities or rents charged upon, or issuing out of them, so as such last will and testament be signed(1) by the testator, or by some other person in his or her' presence, and by his or her' direction; (d) and moreover, if not wholly written by himself or herself,' be attested (e) by two or more credible witnesses [subscribing their names (Feb. (c) A will made since the 1st of January 1787, may pass after-acquired lands. Turpin v. Turpin, 1 Wash. 75. But, to have that effect, it must evidently contemplate after-acquired lands, and dispose of them, as such, otherwise the rule, anterior to this law, will prevail. Harrison et al. v. Allen, 3 Call, 289, 299; Smith et al. v. Edrington, 8 Cranch, 69-70. And it was decided in Kendall's ex'or v. Kendall et al. 5 Munf. 272, that the annexation of a codicil to a will, is not sufficient to operate as a devise of lands, acquired by the testator, between the date of the will and the date of the codicil, unless that intention be indicated by the codicil. See Pigott v. Waller, 7 Ves. jun. 98, and Goodtitle v. Meredith, 2 Mau. & Selw. 5, 13; Hulme v. Hygate, 1 Meriv. 285. A republication has the effect of making the will speak as at the date of republication, and therefore, lands acquired prior thereto, though subsequent to the date of the will, will pass thereby. Bagwell et al. v. Elliott et ux. 2 Rand. 196. A codicil confirming a will is, in law, a republication of the will, so as to pass real estate intermediately purchased. Brownell et ux. v. De Wolf, 3 Mason, 486. Where a codicil in its dispositive part is applicable solely and expressly to the property previously devised by the will, it has not the effect of republishing that will, so as to carry after-purchased property, notwithstanding a more general intent indicated in its recital. Moneypenny v. Bristow, 2 Rus. & Mylne, 117. And see Hughes v. Turner, 3 Mylne & Keene, 666. A right of entry is devisable under our statute. Pr. Green, J. in Watts v. Cole et ux. &c. 2 Leigh, 664. (1) See Lemayne v. Stanley, 3 Levinz. 1, and Selden et al. v. Coalter, et al. gen. ct. Nov. T. 1818, 2 Virg. Cas. 553. If the testamentary paper be not subscribed by the decedent, and on the face of it there appears an intention on the part of the decedent to add something thereto, or do some other act which is left undone; the testamentary paper will be rejected by the court of probat, for want of finality and that conclusiveness of intention, which are essential to a will. Selden & al. v. Coalter et al. 2 Virg. Cas. 553. Where, from an inspection of a testamentary paper, or otherwise, it appears that the deceased intended the same to operate as his will, without any farther act on his part, and without the addition of any other for malities, it is a valid will of personal property. But if some other act or formality was supposed necessary by the decedent, or was intended to be done and observed by him, it is an unfinished and unexecuted will, and is not valid, unless the decedent was arrested by death before he had a reasonable time to complete the instrument in the manner intended. The Public Administrator v. Watts et al. 1 Paige's Ch. R. 347-383, 4 Wend. 168, in error, reversed. And see farther on this subject Sharpe v. Sharp et al. 2 Leigh, 249, 260; Roose v. Moonesdale, 1 Addams's R. 129; Beaty v. Beaty, 1 Addams, 154. S. was (d) (e) These requisitions were much considered in the recent case of Burwell et al. v. Corbin et al. (April 1822,) 1 Randolph, 131-164. The question was, as to the sufficiency of the proof of the execution of a paper writing, purporting to be the will of J. B. B., which paper was wholly written and signed by another person. There were two subscribing witness, S. and B. present, and heard J. B. B. request C. (the writer of the paper) to sign the paper for him, and saw C. sign it in J. B. B.'s presence, and then S. subscribed in J. B. B.'s presence. The other subscribing witness, B. was not present at the time S. witnessed the paper. On the next day B. was presented a paper by J. B. B. (S. not being present) and asked to sign it, and thereupon B. signed it as a witness, in the presence of J. B. B. The witness B. then asked J. B. B. what he had signed, who replied, "it is my will, but you need not make a talk of it; it is time enough." The jury found, on the testimony of these witnesses exclusively, that the paper thus witnessed by B. was the same paper that was witnessed the preceding day by S., and submitted the question-whether the paper was duly proved as a will of lands, to the court. The court below was of opinion, and certified, that it was duly proved. The court of appeals were of a contrary opinion. Every important requisite of the statute must be attested and proved by each witness. Nothing which the statute requires to make the will a complete one, can be substantiated on the testimony of one witness. The statute requires two witnesses to the same facts, as a security against the perjury of one. In this case, the second witness, B., does not prove that the paper by him witnessed was a signed paper, and that it was signed by the direction, and in Act of March 3, 1819-January 1, 1820. R. C. ch. 104. 17, 1823, c. 27,)] in his or her' presence.(ee) From Oct. 1748, c. 5, 5 Stat. Larg. 456; Oct. 1785-Jan. 1787, c. 61, 12 Stat. Larg. 140; 1792, c. 92, R. C.; 29 Car. 2, c. 3. the presence of J. B. B. The mere acknowledgment by J. B. B., that it was his will, not being equivalent to, "this is my name, signed by a person in my presence and by my authority," even if that form of acknowledgment would have been sufficient, which the court strongly doubted; being of opinion, that the cases dispensing with the attestation of the actual signing,-admitting the proof of acknowledgment in lieu there of, were those in which the testator had signed his name with his own hand, and did not include those cases, where the signature was by the hands of another. Roane, J. dissented in an elaborate opinion. The authority of this case doubted, in Dudleys v. Dudleys, 3 Leigh, 436, at which testator's will was written for him by R. P., who testified, that he also signed testator's name thereto, in the presence and at the request of testator, and then subscribed his own name as a witness in testator's presence. B. H., another witness, testified, that some years afterwards, he being at testator's house, it was suggested to testator, that that was a favourable time to have that will witnessed; that testator assented, and the paper in question was produced, that he took it near to testator, and inquired whether he acknowledged it; testator said he did, on which this witness subscribed his name as a witness thereto in testator's presence: Held, the acknowledgment of the paper by testator to B. H., the second witness, was a recognition of the signature thereto as his own, and evidence from which a court of probat may well infer, that testator's signature to the will was written by his authority, and will duly attested by two witnesses. In this case the testimony of one attesting witness was directly contradicted by that of another; the county and circuit courts credited the witness for the will: on appeal, from the sentence of probat, Held, that the court of appeals, on a mere question of credibility of witness, will always presume that the inferior courts which saw and heard the witnesses examined, decided correctly. See Hock v. Hock, 6 Serg. & Raw. 47; Smith v. Jones, 6 Rand. 33. The words of the former laws, (1748; 1785; 1792,) as to the mode of authentication, are similar to those of 29 Car. 2, c. 3, § 5, requiring the will to be "attested and subscribed in the presence, &c.," as amended, Feb. 17, 1823. The word "attest," in its strict and proper sense, I apprehend, means only witnessing, or bearing witness to; but in the ordinary use of the word, as applied to the execution of deeds, it is understood to require that the witnesses should attest in writing. See the certificate of Mansfield, C. J. in Wright v. Wakeford, 4 Taunt. 223; and see farther on this subject, Doe v. Peech, 2 Mau. & Selw. 576; Wright et al. v. Barlow et al. 3 Mau. & Selw. 512, 6 Taunt. 402, and the remarks of Mr. Sugden in his Treat. on Powers, 231-246, 2 Lond. ed. A will of lands subscribed by three wit nesses in the presence and at the request of the testator, is sufficiently attested witam stat. frauds, (Eng.) although none of the witnesses saw the testator's signature, and only one of them knew what the paper was White v. British Museum, 6 Bing. 310; and see Wright v. Wright, 7 Bing. 457. (ee) A testator cannot disinherit his heirs, unless he devises his estate to some one else. This principle results from the nature of property, the creature of the law, and the law will dispose of it, unless, under the permission which the law gives the owner to make a will, he disposes of it Boisseau et al. v. Aldridges, 5 Leigh, 229. The devisor must be in a situation that be may see the witnesses attest. Wright's les see v. Manifold et al. 1 Mau. & Selw. 294; Tod et al. v. The Earl of Winchelsea et al. 2 Car. & Pay. R. 488. An attestation of a will made in the same room with testator, is prima facie an attes tation in his presence; if not made in the same room, 'tis prima facie not an attestation in his presence; but as, in the one case, the attestation is good, if shewn to have been made within the scope of testator's view, from his actual position, so, in the other, it is not good, if it appear, that, in the actual relative situation of testator and witnesses, he could not possibly have seen the act of attestation, nor have so changed situation as to have enabled him to see it, without aid from others, which was at hand, but was neither asked nor gi ven. Neil et al. v. Neil et al. 1 Leigh, 6. The case of Tod et al. v. The Earl of Winchelsea et al. came on, T. T. 1828, on a new trial of the issue, before Ld. Ch. J. Tenterden, when he remarked, in summing up, that "by the statute of frau. 29 Car. 2, c. 3, a will of lands must be attested by three witnesses in the presence of the testator. However, by the word presence, it is not meant that it should be done in the actual sight of the testator; and it is sufficient that the will should be attested in such a situation that the testator might see the witnesses sign the attestation. Such is the result of the authorities; and indeed I am not aware that my opinon delivered at the last trial, has ever been questioned." 3 Carr & Payne, 387. These remarks, shew clearly, that the majority of the court, in the Act of March 3, 1819-January 1, 1820. R. C. ch. 104. 2. § 2. Saving to the widows of the testators, their dower in such lands, tenements, rents or annuities, according to law, which shall not be prejudiced by any devise thereof. 1785-1787, c. 61, 12 Stat. Larg. 140. 3. 61. Where any person shall die seised of lands held for life of another, such person may, by his or her last will and testament in writing, made and proved, as is herein before directed for the devise of lands, devise all his interest in such lands, which shall, if necessary, be assets in the hands of such devisee. And if no such devise be made, such lands, for the residue of the term, shall be assets in the hands of the heir, if it shall come to him by reason of a special occupancy, in the same manner as lands descending in fee simple; and, if there be no special occupant, it shall go to the executors or administrators of the person so dying seised, and be assets in their hands, subject to debts, legacies and distribution. 1785, c. 61, 12 Stat. Larg. 140; 29 Car. 2, c. 3; 14 Geo. 2, c. 20. 4. § 3. No devise so made, or any clause thereof, shall be revocable, but by the testator or testatrix' destroying, (f) cancelling, or obliterating the same, or causing it to be done in his or her' presence, or by a subsequent will, codicil or declaration in writing, made as aforesaid.(g) But every last case of Neil et al. v. Neil & al. correctly understood the opinion of ld. Tenterden. The will of a blind man shall be admitted to probat and record, as a will of real, as well as personal estate, if attested at his request in the same room with him; tho' it be not proved that the will was read to him in the presence of the attesting witnesses, or that it was read to him; provided it appears satisfactorily to the court that he was acquainted with the contents thereof, and intended to make the testamentary dispositions therein contained. Boyd et al. v. Cook ex'or of Vass, 3 Leigh, 32; Barton v. Robins, 3 Phill. 455, note (b). (f) A testator being angry with one of the devisees named in his will, began to tear it, with the intention of destroying it; and having torn it into four pieces, was prevented from proceeding further, partly by the efforts of a by-stander, who seized his arms, and partly by the entreaties of the devisee. Upon this, he became calm; and having fitted the pieces together, and finding that no material word had been obliterated, he said, "It is well it is no worse. Held by K. B. (April 1820,) that it was on these facts properly left to the jury to say whether he had completely finished all that he intended to do for the purpose of destroying the will; and the jury having found that he had not, the court refused to disturb the verdict, and supported the will. Doe, dem. Perkes v. Perkes et al. 3 Barn. & Ald. 489. See Johnson et al. v. Brailsford, 2 Nott & M'Cord, 272. Where the execution of a will is established, in order to revoke it, there must be some outward and visible sign of revocation, or cancelling animo revocandi: unless there be evidence of its having been cancelled or otherwise revoked by the testator, the law presumes its continued exist ence to the period of his death. Jackson, ex dem. J. S. & W. Brown v. Betts, 9 Cow. 208. But see S. C. in error, 6 Wend. 173; Toley v. Bowen, 11 Wend. 227. And there can be no doubt, in law, that if a will duly executed is destroyed in the lifetime of the testator, without his authority, it may be established, on satisfactory proof being gi ven of its having been so destroyed, also, of its contents. Trevelyan v. Trevelyan, 1 Phill. R. 149; Davis v. Davis, 2 Addams's R. 223; and see Lemon v. Reynolds & al. 5 Munf. 552; and Brent v. Dold, Gilmer, 211. A blind testator orders a will made by him to be destroyed, and believes it is destroyed accordingly, but it is not destroyed, and no act towards destruction done; this is not a revocation by destruction or cancellation, within this section (3). At least, a court of probat cannot consider this as amounting to a revocation. Boyd et al. v. Cook, ex'or, 3 Leigh, 32. (g) A person made a will in due form, to which he afterwards annexed a codicil; he then made a second will, to which he added a postscript, by which he "revoked all former wills," this postscript he signed: the first will and codicil, and the second will and postscript were wholly in the testator's handwriting. The second will was cancelled, by cutting his name out from the body of it, leaving the postscript entire. The second will thus cancelled, and the postscript and the first will were carefully preserved by him: Held, by a majority of the court, Roane, J. dissenting, that the postscript to the second will, was a substantive revocation of the first will, and that the cancelling of the second will, did not necessarily cancel the postscript also, so as to set up the first will. In such cases parol evidence is admissible, to shew the Act of March 3, 1819-January 1, 1820. R. C. ch. 104. will and testament, made when the testator had no child living,(h) wherein any child he might have, is not provided for, or mentioned, if, at the time of his death, he leave a child, or leave his wife enseint of a child, which shall be born, shall have no effect during the life of such after-born child, and shall be void, unless the child die, without having been married, and' before he or she shall have attained the age of twenty-one years. When a testator shall leave children born, and his wife enseint, the posthumous child or children, if it be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father's estate, as such child would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably, out of the parts devised and bequeathed to them(i) by the same will and testament. Oct. 1748, c. 5, 5 Stat. Larg. 456; 1785, c. 61, 12 Stat. Larg. 140; 29 Car. 2, c. 3. [The thirteenth section of the act, entitled "an act to reduce into one the several acts directing the course of descents," shall be, and the same is hereby repealed; [ante, p. 278, No. 13, omitted in its proper place,] and hereafter no right in the inheritance shall accrue to any person whatever, unless such person be in being, and capable in law to take as heir, at the time of the intestate's death, or being in ventre sa mere, shall be born in ten months thereaf ter; and all persons so born, shall be capable of taking by inheritance in the same manner as posthumous children heretofore inherited from their fathers. § 1. When any testator shall die seized of lands, or of any interest therein, and shall by his last will and testament charge those lands with the payment of his debts, and shall also direct that his estate shall be kept together for the support of his family, or be otherwise managed or disposed of for that purpose, or without charging his lands with the payment of his debts, shall direct his estate to be kept together and managed for the support of his family as aforesaid, and shall die, leaving a wife and child or children therein provided for or pretermitted, and his wife enseint, the posthumous or pretermitted child or children, if it or they be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by such last will and testament, the estate shall be managed, in all respects, as directed by the will of the testator, and for the period during which he may have so directed; and situation of the parties, and quo animo, the cancellation was made. Bates v. Holman, 3 H. & M. 502. See this subject discussed at large in Moore et al. v. De La Torre et al. 1 Phil. R. 375; and Moore v. Moore et al. 1 Phil. R. 406, 446. A subsequent marriage and issue, is an implied revocation of a will. Wilcox v. Rootes et al. 1 Wash. 140. Both these circumstances must concur. Doe v. Bardford et al. 4 Mau. & Selw. 10; Brush v. Wilkins et al. 4 Johns. Ch. Rep. 506, in which Kent, chan. reviews the authorities on the subject. See Johnston v. Johnston, 1 Phillim. R. 447, and Roane, J. in Yerby v. Yerby, 3 Call, 337; Gibbons et al. v. Cross, 2 Addams's Rep. 455. These implied or presumptive revocations, are liable to be rebutted by circumstances. See the cases just cited. Talbot et al. v. Talbot, 1 Haggard's R. 705. (h) The case of Yerby v. Yerby, 3 Call, 334, was unprovided for by this section, the testator having children living this defect was remedied by the act of 1794, post. No. 5, § 4. (i) A devise in general terms to the devisor's "children," does not include a posthumous child, so as to prevent it from claiming under the provisions of this section as a pretermitted child. Such child is entitled to such share of the real and personal estate, as it would have been entitled to, if the father had died intestate; including the rents and profits of the real estate, and interest and profits of the personal estate and hires of negroes. The portion of such child, is to be raised by a proportionable contribution by the devisees and legatees, and those claiming under them, (though they be purchasers without notice of such claim, this being a legal right,) and not by dividing the estate into equal parts. Armistead et al. v. Dangerfield et ux. 3 Munf. 20. Act of March 3, 1819-January 1, 1820. R. C. ch. 104. during that period, the pretermitted or posthumous child or children shall equally participate with the child or children provided for in the will, in any fund created thereby for the support and education of the child or children, and if by such last will and testament any distinction is made in the amount appropriated for the education and support of the male and female children, the pretermitted or posthumous males shall participate equally in the fund with the males provided for therein, and the pretermitted or posthumous females shall participate equally in the fund with the females provided for in such last will, towards raising which portion or portions the devisees or legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament. § 2.-If after the time during which the testator has directed his estate to be kept together for the purposes set forth in the previous section, shall have elapsed, and the debts, if any, charged upon the estate by the testator, have been paid and satisfied, then such pretermitted or posthumous child or children unprovided for by the settlement, and neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father's estate, after the payment of debts, if any, charged upon the lands, as such child or children would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament: Provided, That nothing herein contained shall affect the liability of any estate to the payment of its debts. Act of Feb. 21, 1840, Ses. Acts, c. 56, § 1, 2, 3, p. 48, 49.] 5. § 4. If a testator, having a child or children, born at the time of making and publishing his last will and testament, shall, at his death, leave a child or children, born after the making and publishing of his said last will and testament, the child or children so after-born, if such child or children be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father's estate, as such child or children would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute, proportionably, out of the parts devised and bequeathed to them by the same will and testament, in the manner as is provided in the case of posthumous children. Dec. 5, 1794, c. 170, R. C. [If any pretermitted or posthumous child of any testator shall hereafter die under age, unmarried and without issue, all the estate to which such child may be entitled, under the provisions of this or any other act, and which shall not have been expended in his or her support and education, shall revert to the persons to whom such estate may have been devised or bequeathed by the will of such testator. Act of Feb. 21, 1840, Ses. Acts, c. 56, § 4, p. 49.] 6. § 5. Whensoever any estate of any kind, shall or may be devised or bequeathed by the testament and last will of any testator or testatrix, to any person being a child or other descendant of such testator or testatrix, and such devisee or legatee shall, during the lifetime of such testator or testatrix, die, testate or intestate, leaving a child or children, or one or more descendants of a child or children, who shall survive such testator or testatrix;' in that case such devise or legacy, to such person so situated as abovementioned, and dying in the lifetime of the testator or testatrix, shall not lapse; but the estate so devised or bequeathed, shall vest in such child or children, descendant or descendants of such legatee or devisee, in the same manner as if such legatee or devisee had survived the testator or testatrix, and had died unmarried and intestate.' Jan. 15, 1813, c. 19. 7. § 6. No person under the age of eighteen years, shall be capable of disposing of his or her chattels by will. 1785, c. 61, 12 Stat. Larg. 141. [Every |