123 requests them to subscribe it, this is a sufficient *acknowledgment of his signature (r): But not where they are unable to see the signature, and the testator merely calls them in to sign, without giving them any explanation of the instrument they are signing (8).19 So in a case before Sir C. Cresswell, the witnesses were invited by the testator to It will be observed that in the case of Blake . Blake also the signature was covered up. It may be that there is a distinction between the rule in the cases where the testator acknowledges his signature, and in cases where he signs in the presence of the witnesses, as to what opportunity or possibility there must be of the witnesses seeing what it is that is written. See Smith v. Smith, L. R. 1 P. & D. 143. On the application of the maxim "omnia præsumuntur rite esse acta," see Woodhouse v. Balfour, 13 P. D. 2, and post, p. *91. 7) In the following cases there was held to be a sufficient acknowledgment: Gaze v. Gaze, 3 Curt 451. Blake v. Knight, ib., 547. Keigwin v. Keigwin, ib., 607. In the Goods of Davis, ib., 748. In the Goods of Ashmore, ib., 756. Cooper t. Bockett, 3 Curt. 649; 4 Moo. P. C. 419. In the Goods of Thomson, 4 Not. of Cas. 643. Leech v. Bates, 6 Not. of Cas. 704. Faulds v. Jackson, 6 Not. of Cas. Supp. 1. Burgoyne v. Showler, 1 Rob. 12. Bosanquet v. Bosanquet, 2 Rob. 577. Lloyd v. Roberts, 12 Moo. P. C. 158. Gwillim v. Gwillim, 3 Sw. & Tr. 200. Vinnicombe . Butler, 3 Sw. & Tr. 580. Beckett v. Howe, L. R. 2 P. & D. 1. Inglesant v. Inglesant, L. R. 3 P. & D. 172. Daintree r. Fasulo, 13 P. D. 67, 102. It is not necessary that a testator should state to the witnesses that it is his signature: the production of a will by a testator, it having his name upon it, and a request to the witnesses to attest it, would be a sufficient acknowledgment of the signature under the statute: Ilott v. Genge, 3 Curt. 172, 175, per Sir H. Jenner Fust. See also Blake v. Knight, ibid. 563, 564. In the Goods of Thomson, 4 Notes of Cas. 643. Leech v. Bates, 6 Notes of Cas 704, by Sir H. Jenner Fust. The like was held where the testator had intimated to the same effect by gestures: In the Goods of Davies, 2 Robert. 337. The request of another person in the presence of the testator may be equivalent to a request by the testator himself. Faulds v. Jackson, 6 Notes of Cas. Suppl. 1. Re Jones, Dea. & Sw. 3. Inglesant v. Inglesant, L. R. 3 P. & D. 172. (s) In the following cases there was held to be no sufficient acknowledgment: Ilott v. Genge, 3 Curt. 160 (affirmed in Privy Council, 4 Moo. P. C. 265). Hudson v. Parker, 1 Rob. 14. In the Goods of Summers, 2 Rob. 295. 4 Sw. & Tr. 10. In the Goods of Swinford, L. R. 1 P. & D. 630. Pearson, L. R. 2 P. & D. 451. v. Douglas, L. R. 3 P. & D. 1. Popham, L. R. 3 P. & D. 246. Croft v. Croft, Pearson v. Morritt Fisher v. Blake v. Blake, 7 P. D. 102. It is not sufficient merely to produce the paper to the witnesses where it does not appear that the signature of the testator was affixed to it at the time. Ilott v. Genge, 3 Curt. 160, 181, per Sir H. Jenner Fust. In the Goods of Ashton, 5 Not. of Cas. 548. 19. A mere tacit signing of the instrument without any information as to its nature will not be sufficient; the witnesses must be informed in some way by the testator personally that the document is a will. Estate of Fusilier, Myrick Prob. 40. But if the witnesses sign in the presence of the testator without objection on his part, he knowing what they are doing, this is sufficient without any particular request from him to sign. Will of witness his signature on a paper which appeared to them to be a blank : They saw no writing whatever on it, and the signature they witnessed was on the fourth side of a sheet of paper folded in the middle: On the first side of that sheet, when the paper was produced for probate, there appeared to be a codicil; but there was no evidence that anything was written on the paper *before the signatures were put there: And on that ground, the learned judge, after consideration, refused to admit the paper to probate (t). It may here be observed, that the Wills Act further enacts, by sect. 13, "that every will executed in manner hereinbefore mentioned shall be valid without any other publication thereof." And it has been said (u), that the result of this enactment is, that the testator need not inform the witnesses of the nature of the instrument they are attesting, and that even if he deceives them and leads them to believe that it is a deed, and not a will, the execution is good notwithstanding.20 Meurer, 44 Wis. 392. But in Oregon they must either have seen him sign the will, heard him acknowledge it, or observed acts which unmistakably indicated that he had signed it. Luper v. Werts, 19 Oreg. 122. But it is impossible for a person, under the statute, to acknowledge his signature unless the witnesses see the signature which the person attempts to acknowledge. Matter of Mackay, 44 Hun 571. (t) In the Goods of Hammond, 3 Sw. & Tr. 90. It will be seen from the cases cited above that evidence is admissible as to whether the signature of the testator was on the will at the time of attestation. But sometimes it happens that no direct evidence is forthcoming. In such cases the court is at liberty to judge from the circumstances of the case whether it was probable that the name of the testator was on the will at the time of attestation. In the Goods of Huckvale, L. R. 1 P. & D. 375. In the Goods of Pearn, 1 P. D. 70. The fact that there is an attestation clause in the proper form would seem itself to be some evidence that the name of the testator was on the will at the time of attestation. In the Goods of Huck vale (ubi sup.). In the Goods of Pearn (ubi sup.). Wright v. Rogers, L. R. 1 P. & D. 678. Woodhouse v. Balfour, 13 P. D. 2. See further on this point, Smith v. Smith, L. R. 1 P. & D. 143. But the existence of an attestation clause is not conclusive. In the Goods of Swinford, L. R. 1 P. & D. 630. Croft v. Croft, 4 Sw. & Tr. 10. Fischer v. Popham, L. R. 3 P. & D. 246. (u) Sugden's Essay, p. 140, citing Trimmer v. Jackson, 4 Burn, E. L. 130. British Museum v. White, 3 Moo. & P. 689. 20. There must be, in some of the states, an actual publication, and such publication must be some act that will intimate to the witnesses that the instrument is the will of the testator, and it must be some declaration or expression different and distinct from a request to sign as a witness. This is so in New York, Heyer v. Berger, 1 Hoff. Ch. 1; Torry v. Bowen, 15 Barb. 304; Lewis v. Lewis, 13 Id. 17; Newhouse r. Godwin, 17 Id. 236; Abbey v. Christy, 49 Id. 276; Gilbert v. Knox, 52 N. Y. 125; Auburn Theo. Sem. v. Calhoun, 62 Barb. 381; McKinley v. Lamb, 64 the attestation must be after the signed or his signature to testator has acknowledged both the wit Again, in the construction of the Statute of Frauds, it was held that the act did not require that the witnesses should subscribe in the presence of each other, but that they might attest the execution separately, at different times (v). But the Wills Act makes it necessary that both the witnesses to the will shall be present, at the same time, when signature is made or acknowledged by the testator. And they must attest in the presence of the testator, though not of each other (x). And it appears to be now fully established that the act is not complied with, unless both Id. 199; and in New Jersey, Compton . Mitton, 7 Halst. 70; Combs v. Jolly, 2 Gr. Ch. 625; Mickle v. Matlack, 2 Harr. (N. J.) 87; Morehouse v. Cotheal, 1 Zab. 480; also in North Carolina; and in Arkansas. Rogers v. Diamond, 13 Ark. 474. A request made by a third person in the hearing of the testator is, in law, the request of the testator, if he be conscious and does not object. Cheatham v. Hatcher, 30 Gratt. 56. In New York, however, no particular form of publication is required, Will of Beckett, 35 Hun 447; but in some way it must be made known to the witnesses that it is a will and that the testator desires them to attest its execution, Moore . Moore, 2 Bradf. 265; where testatrix simply said that it was all right, it was held sufficient, Campbell v. Logan, 2 Bradf. 98; in another case reading aloud followed by the act of signature was held to be a sufficient testamentary declaration, Vaughan v. Burford, 3 Id. 78; to the same effect, Carle v. Underhill, Id. 105; Burk's Will, 2 Redf. 239; Thompson v. Stevens, 62 N. Y. 634. (r) Ellis v. Smith, 1 Ves. Jun. 12. (z) Cooper v. Bockett, 3 Curt. 659, per Sir H. Jenner Fust. Faulds v. Jackson, 6 Notes of Cas. Suppl. 1. In the Goods of Webb, Dea. & Sw. 1. In Casement v. Fulton, 5 Moo. P. C. C. 130, the the nesses being same time: and they must present at the attest in the presence of the testa tor, though not of each other: Where one witness, in the presence of testator, said to the other witnesses that this was the will of the testator who desired them to sign it as witnesses, to which the testator made no reply, it was sufficient, Gilbert v. Knox, 52 N. Y. 125; so too where the statement is made to all the witnesses by the draftsman, Peck v. Cary, 27 N. Y. 9; In Coffin v. Coffin, 23 Id. 9, one witness, in presence of the other, asked the testator whether he wished them to sign as witnesses, to which the testator answered, "Yes," held to be sufficient publication; so too the reading of the attestation clause in testator's presence, even after it was signed by the witnesses, Stewart's Will, 2 Redf. 77; Van Hoffman v. Ward, 4 Id. 244; so too "Will you witness my will?" or "I want you to witness my will," is a sufficient compliance with the statute, Will of Harder, Tuck. 426, 429 ; and an assent upon the part of the testator to questions put by the scrivener will answer, Will of Higgins, 94 N. Y. 554; Whitbeck v. Patterson, 10 Barb. 608; Thompson v. Stevens, 62 N. Y. 634; Coffin v. Coffin, 23 Id. 9; and in one same court held (without adverting to their previous decision) that the witnesses must attest in the presence of each other. This case, however, has not been followed. witnesses shall attest and subscribe after the testator's signature shall have been made or acknowledged to them 21 when both are actually case the testator said, "Evidently I give all that I possess to my mother; I do not know my father," and then, speaking of the witnesses, said, "Let them sign," it was held that the publication was sufficient. Van Hoffman v. Ward, 4 Redf. 244. But where the scrivener said, "Do you acknowledge, in the presence of these witnesses, that you signed this paper as your last will and testament?" it was held to be insufficient, Rumsey v. Goldsmith, 3 Dem. 494, 503; so too it was held that the answer, "Yes," to the inquiry whether testator was making his will, was insufficient. Matter of Simmons, 30 N. Y. St. Rep. 446. And in Louisiana, where the will, having been written out of the presence of the testator and witnesses, is read by one of the witnesses in the presence of the testator and the other witnesses, and then that witness says, "Is this paper that has just been read your will?" to which the testator answers, "It is," this is sufficient, Bourke v. Wilson, 38 La. Ann. 320; and in a similar case the court said: "We do not see how it could have been better presented." Buntin v. Johnson, 28 Id. 796. As in New York, so in other states no particular form of publication is required. In California a question put by the scrivener to the testator, in the presence of the witnesses, "Is that your 21. As a general proposition, a will cannot be attested unless signed by the testator, or by some one by him authorized. Reed v. Watson, 27 Ind. 443. But in Pennsylvania the witnesses may sign first. Miller v. McNeill, 35 Pa. St. 217. And in New Jersey the validity of the will is not affected by the fact that one of the witnesses signed before the testator. Mundy v. Mundy, 2 McCart. will?" and the answer "Yes," is sufficient publication. Estate of Johnson, 57 Cal. 529; so the publication is sufficient if testator declares in the presence of the witnesses that a will subscribed by one witness, in testator's name, is his will, and the witnesses thereupon all sign as witnesses. Estate of Toomes, 54 Cal. 509. And in Maine, Massachusetts, Kentucky, Illinois, Indiana, South Carolina and Virginia, it is only requisite that it be evident that the testator knew that the instrument was his will and intended to execute it, and that it should be attested as his will. Cilley v. Cilley, 34 Me. 162; Osborn v. Cook, 11 Cush. 532; Swett v. Boardman, 1 Mass. 258; Dewey v. Dewey, 1 Metc. 349; Hogan v. Grosvenor, 10 Id. 54; Verdier v. Verdier, 8 Rich. 135; Black v. Ellis, 3 Hill (S. C.) 68; Beane v. Yerby, 12 Gratt. 239; Ray v. Walton, 2 A. K. Marsh. 71; Dickie v. Carter, 42 III. 376; Brown v. McAlister, 34 Ind. 375. And in Georgia the acknowledgment of his signature by the testator is a sufficient publication. Webb v. Fleming, 30 Ga. 808. But in Pennsylvania it need not even be declared to be a will, the declaration by the testator that it is his act and deed being sufficient. Loy v. Kennedy, 1 Watts & S. 396. In Kentucky it is said that in all adjudications involving publication and attestation of wills a substantial, rather 290, 294. So too, in Connecticut it is held that it makes no difference in what order the testator and witnesses sign, provided it be all part of one transaction. O'Brien v. Galagher, 25 Conn. 229. But if there be no proof to the contrary, the presumption is that the testator signed before the witnesses. Allen v. Griffin, 69 Wis. 529. See ante, p. 97, n. 5. present at the same time (y). And if one of the witnesses has subscribed before the testator signs or acknowledges his signature in the presence than a literal, compliance with the statute has been demanded, and if its object and intention were reached without violation of its express language, that is all that has been required. Porter v. Ford, 82 Ky. 191; Soward v. Soward, 1 Duv. 126; so too in New York, a substantial compliance with the statute will suffice. In re Voorhis, 125 N. Y. 765; Will of Phillips, 98 Id. 267. Any communication of the idea that the instrument is a will is sufficient, Seguine v. Seguine, 2 Barb. 385; Remsen v. Brinkerhoff, 26 Wend. 325; and this knowledge must be evinced with reasonable definiteness, Hunt . Mootrie, 3 Bradf. 322; so that the testamentary character of the instrument evidently has been communicated to the witnesses. Ex parte Beers, 2 Bradf. 162. It is immaterial what expression is used if the proper meaning be conveyed, Ham v. Case, 1 Redf. 307; and such meaning may be conveyed either by words or signs, Estate of Crittenden, Myrick's Prob. 50; Ludlow v. Ludlow 8 Stew. (N. J.) 480; Haynes v. Haynes, 33 Ohio St. 598. When the testatrix merely bowed her head in response to interrogations it was sufficient publication. Baldwin v. Baldwin, 81 Va. 405. So in Vermont a declaration, in presence of the testator, by the person who drew the will is a sufficient publication. Denny . Pinney, 60 Vt. 524. This will suffice in Indiana also. Dyer v. Dyer, 87 Ind. 13; Conway r. Vizzard, 122 Id. 266; Bundy v. McKnight, 48 Id. 502. (y) Moore v. King, 3 Curt. 243. Cooper v. Bockett, ibid. 648. 4 Moo. P. C. 419. See also In the Goods of Allen, 2 Curt. 331. In the Goods of Olding, 2 Curt. 865. In the Goods of Simmonds, 3 Curt. 79. In the Goods of Byrd, 3 Curt. 117. Pennant v. Kingscote, 3 Curt. While in Illinois no declaration by the testator that it is his will is essential, Will of Storey, 20 Ill. App. 183; nor in Wisconsin. Allen v. Griffin, 69 Wis. 529. And in Connecticut the witness need not know that the instrument attested is a will. Canada's Appeal, 47 Conn. 450. And in Iowa it is not in any way essential to the validity of a will that the character and purposes of the instrument should be stated to the witnesses by the testator or by any one on his behalf. Will of Hulse, 52 Iowa 662. But although declarations made by a third person will suffice if the testator be strong and well, when the attestation is at the end of a long sickness, and when the testator is within a few hours of death and very weak, such declaration will not answer unless there be clear proof of their adoption by the testator. Heath v. Cole, 15 Hun 100. But where one witness who signed in an adjoining store returned with the testator to the office where the scrivener was and there asked the testator "if he acknowledged that to be his work," whereto the testator assented, this was held not to be a sufficient publication. Larabee v. Ballard, 1 Dem. 496. Nor is it a sufficient publication where testator asked the witnesses to "sign as witnesses," but made no declaration as to the nature of the document. Will of Harris, Tuck. 293, 300. Nor where but one of the witnesses is informed that it is a will. Will of Newton, Id. 349. But where the testator 643, 647. Hindmarsh v. Charlton, 8 H. of L. 160. The words of the act are prospective, such witnesses "shall attest and shall subscribe the will in the presence of the testator:" 3 Curt. 660, per Sir H. Jenner Fust. |