regularly. 2d. One witness was an attorney of good character, and might be presumed to understand what ought to be done, rather than the contrary; and there might be circumstances to induce a jury to believe that the witnesses set their hands in the presence of the testatrix, rather than the contrary: and it being a matter of fact, was proper to be left to them. The plaintiff was nonsuited. 2 Stra. 1109. 30. The same question arose in a subsequent case, Croft v. on a trial at bar in ejectment. The defendant made Pawlet, title under a will, the attestation of which was in these words, "Signed, sealed, published, and declared as and for his last will in the presence of us, A. B. and C." The witnesses were all dead, and their hands proved in common form. It was objected that this was not an execution, according to the statute of frauds; and the hands of the witnesses could only stand as to the facts they had subscribed to; and signing in the presence of the testator was not one. The Court, on the authority of Hands v. James, said, it was evidence to be left to a jury of a compliance with all the circumstances. A verdict was given for the will. ferent Times. 31. By the Roman law, it was necessary that all the witnesses should be present at the same time; and attest at dif some doubts were formerly entertained, whether the same circumstance was not required by the statute of frauds. But it is now established, that although the witnesses attest at different times, yet it is sufficient, 32. A will of lands attested by three witnesses, Auon. 2 Cha. who at several times subscribed their names, at the Ca. 109. request of the testator, but were not present at once together, was decreed to be well attested, within the statute. Cook v. Jones v.Lake, 2 Atk. 176. n. 33. On a bill of review to reverse a decree of Lord Nottingham, for sale of lands, subjected by a will to the payment of debts. The will was written in the testator's own hand, and published in the presence of three several witnesses, at three several times, and they all attested it in his presence. One of the objections to the decree was, that it was no good will within the statute of frauds, because not attested by all the witnesses at one time. Lord Keeper Wright held a publication of a will before three witnesses, though at three several times, good within the statute. · 34. In ejectment a special verdict was found, that a testator executed his will in the presence of two witnesses, who attested the same in his presence; that four years after the testator went over his name with a pen in the presence of a third witness, who subscribed his name in his presence, and at his request. Mr. Henley argued for the heir at law, that the statute requiring three witnesses to subscribe in the testator's presence, must intend they should be all present together, else there was not that degree of evidence which the statute required; for an attestation of three witnesses, at different times, had only the weight of one witness. Witnesses to a will not only attest the due execution of it, but likewise the capacity of the testator at the time of execution. A man might be sane at the time when two of the witnesses attest, and insane when the third attests, It could not be considered as a will till the third witness had signed it, for that completed the act. Mr. Banks argued, on behalf of the devisee, that a will executed in the presence of three witnesses, though they attested it at different times, was good, within the statute of frauds; because that statute did not require that all the witnesses should be present at the same time. The requisites under the statute were, that the testator should sign in the presence of three witnesses at least, and that they should attest in his presence. It would therefore be adding new requisites, which the act did not mention, and in fact making a new law. Lord Ch. J. Lee.-"This case depends on the words of the statute; the requisites in the statute are, that the three witnesses should attest the signing of the testator; but it does not direct that the three witnesses should be all present at the same time. There has been no determination as to this point. In the case of Cook v. Parsons, the testator's signing ante, § 33. was held good, though it was not before three witnesses at the same time; and the Court only doubted whether the testator's barely owning the subscription to be his, before one of the witnesses, was good; but there was no doubt as to the validity of the will, from the execution at different times. Here you have the oaths of three attesting witnesses; this is the degree of evidence required by the statute; and the same credit is given to three persons, at three different times, as at the same time. We cannot carry the requisites farther than the statute directs; the act is Westbuch silent as to this particular; it would therefore be v. Kennedy, making a new requisite. The signing is the same 362. 1 Ves. & B. act reiterated; the testator in the principal case Vide 1 Ves. went over his name again, and declared it to be his Jun. 14. 16. last will." Judgement against the heir at law. Wills and 35. It was formerly held that every will, and every Whether codicil, must be separately attested by three witnesses: Codicils must for the attestation of two witnesses to a will, and of be separately a third witness to a codicil annexed to that will, was not sufficient, nor could the attestation of a codicil attested. Lea v. Libb, Holt, 742. Att. Gen. v. Barnes, Gilb. R. 5. operate in any case as the attestation of a will, to which it was declared to be annexed. 36. A person made his will in writing, by which he devised lands, and sealed and published it in the presence of two witnesses only, who subscribed it in his presence. A year after, he caused another writing to be prepared, which recited that he had made his will, and confirmed it in all things; and said, "and my will is, that this codicil be taken to be of force, and part of my will." It was found that the codicil was attested by two witnesses, one of whom was witness to the will, the other not; and it was further found, that the codicil was distinct from, and not annexed to the will. Lord Ch. J. Holt delivered the opinion of the Court, that this was not a good will within the sta tute, for want of three attesting witnesses. The codicil would not carry the land without the will, nor the will without the codicil. And the three witnesses within the statute ought to be witnesses to the whole. 37. A person devised freehold lands to a college, by a will written with his own hand, but not attested Prec. in Cha. by any witness. The testator afterwards made a codicil, attested by four witnesses, wherein he recited his will. 270. It was determined that the attestation of the codicil could not operate so as to render the will valid; for the codicil might be executed in another place, and the witnesses might not either see or know any thing of the will. The doctrine laid down in the above case, appears doubtful, for in Habergham v. Vincent, which will be stated hereafter, Mr. J. Wilson, whom Lord Loughborough called to his assistance, is reported to 3 Burr. R. 1775. have said "I believe it is true, and I have found 2 Ves. Jun. no case to the contrary, that if a testator in his will 228. refers expressly to any paper already written, and has so described it, that there can be no doubt of the identity, and the will is executed in the presence of three witnesses, that paper makes part of the will, whether executed or not; and such reference is the same as if he had incorporated it; because words of relation have a stronger operation than any other. As Lord Coke says, in his comment on Littleton, where Littleton is speaking of the word heirs being necessary to raise an estate of inheritance, Lord Coke makes this exception; if A. enfeoff B. and his heirs, and B. enfeoffs A. in as full and ample a manner as A. has enfeoffed him, that will give the inheritance, without the word heirs; and it shall have effect by relation." 38. Where a codicil is written on the same sheet of paper with a will, the attestation of the codicil by three witnesses establishes the will, though such will be not duly attested. 39. Sir James de Bathe by his will, attested by only one witness, appointed Lord Fingall and Mr. Cruise to be guardians to his children. By a codicil written on the same sheet of paper, the testator expressed himself in the following manner:-" I do hereby make and declare this to be a codicil to my will hereunto annexed, in which said will I am disposed to make some alterations." He then made alterations as to legacies, and concluded thus; "and in all other respects confirm my said will hereunto annexed." The codicil was attested by three wit nesses. guar Mr. Alexander contended, on behalf of the dians, that this appointment was clearly sufficient. De Bathe |