at the foot of the first page, but there were no signatures or initials below the words on the second page.

C. A. Middleton moved for probate of the whole instrument. Although 15 Vict. c. 24, § 1, provides that no signature under that act or the Wills Act, 1837, "shall be operative to give effect to any dis position or direction which is underneath or which follows it," words. on the second page of a will which is duly signed at the foot of the first page have been included in the probate as interlineations where the court has been satisfied that they were written before execution.

BUTT, J. In In re Goods of Birt, L. R. 2 P. & D. 214, the asterisk and the words "see over" preceded the testator's signature, whereas here there is nothing to connect the signature with the words on the second page. In the present case the "disposition" is partly before and partly after the signature, and therefore the proper course will be to exclude the words on the second page. and to grant probate of the first page only."

SECTION 4.-TESTATOR'S ACKNOWLEDGMENT, PUBLICATION, AND REQUEST TO WITNESSES TO SIGN

WHITE v. TRUSTEES OF BRITISH MUSEUM.

(Court, of Common Pleas, 1829. 6 Bing. 310.)

157

TINDAL, C. J. * * The objection, therefore, to the execution of the present will, does not rest upon the fact that it was not signed by W. White [the testator, who died May 13, 1823] in their [the witnesses'] presence; but that with respect to two of the witnesses, Hounslow and Bristow, there was no acknowledgment of his signature, nor any declaration that it was his will; but that they signed their names in entire ignorance of the nature of the instrument, of of the object for which their names were written. And it is argued, that if such subscription of their names satisfies the intention of the statute the word "attested" will have no force whatever, and may be considered as if it had never been inserted.

23 See Millward v. Buswell, 20 Times Law Reports, 714 (1904), where it was held that the first page of a will, written on three pages of paper and signed by testatrix and her witnesses on the first page only, ought to be admitted to probate without the other pages. For similar holdings see Royle v. Harris, [1895] P. 163; In the Goods of Rebecca Susan Gilbert, 78 Law Times (New Series) 762 (1898); In the Goods of William Gee, 78 Law Times (New Series) 843 (1898); In the Goods of Anstee, [1893] P. 283.

"But it is entirely clear that the first and second pages of the paper, without the third, did not constitute the last will of the decedent. The paper was not signed at 'the end thereof' as required by the statute to make a valid will." Day, C. J., In Glancy v. Glancy, 17 Ohio St. 134, 139 (1866).

24 The statement of facts is omitted, and part only of the opinion is given.'

Must u's

crow it is.

。 will?

The question, however, appears to us to be, Whether, upon this special verdict, the finding of the jury establishes, although not an acknowledgment in words, yet an acknowledgment in fact, by the devisor to the subscribing witnesses, that this instrument was his will? for if by what the devisor has done, he must, in common understanding and reasonable construction, be taken to have acknowledged the instrument to be his will, we think the attestation of the will must be considered as complete, and that this case falls within the principle and authority of that of Ellis v. Smith [1 Ves. Jr. 11 (1754)]. *

When, therefore, we find the testator knew this instrument to be his will; that he produced it to the three persons and asked them to sign. the same; that he intended them to sign it as witnesses; that they subscribed their names in his presence, and returned the same identical instrument to him; we think the testator did acknowledge in fact, though not in words, to the three witnesses, that the will was his. For whatever might have been the doubt upon the true construction of the statute, if the case were res integra, yet as the law is now fully settled, that the testator need not sign his name in the presence of the witnesses, but that a bare acknowledgment of his handwriting is a sufficient signature to make their attestation and subscription good within the statute, though such acknowledgment conveys no intimation whatever, or means of knowledge, either of the nature of the instrument, or the object of the signing; we think the facts of the present case place the testator and the witnesses in the same situation as they stood where such oral acknowledgment of signature has been made, and we do therefore, upon the principle of those decisions, hold the execution of the will in question to be good within the statute. Judgment for defendants.

In re CLAFLIN'S WILL.

'Supreme Court of Vermont. Orange, 1902. 75 Vt. 19, 52 Atl. 1053, 58 L. R. A. 261.)

ROWELL, C. J.25

A more important question arises on the charge where it says that the attesting witnesses must have been informed and have known that it was Claflin's will that they were then and there asked to witness and attest; that, if he concealed from them the fact that it was his will, they did not attest his will; that it was necessary when they signed the will as witnesses that they should know they were signing as witnesses to his will; that they must have been informed of that in some way, and have understood it when they signed.

It appears that the will, including the attestation clause, was written and signed by the testator; that he superintended its execution,

25 Part only of the opinion is given.

and that the attesting witnesses subscribed it at his request and in his presence; but whether in the presence of one another was the important question.

Under statutes like ours, which provide that wills must be "attested and subscribed by three or more credible witnesses in the presence of the testator and of each other," it is very generally held in this country that the witnesses need not know that the instrument they are attesting is a will, because such statutes are construed not to require it; and it is a question of construction, and nothing more.

The English statute of frauds (29 Car. II, c. 3, § 5), before its modification by 1 Vict. c. 26, § 9, required wills of lands and tenements to be "attested and subscribed" in the presence of the testator by three or four credible witnesses; and it was always held in England under that statute that the witnesses need not know that the instrument was a will.

In White v. Trustees of the British Museum, 6 Bing. 310, only one of the witnesses knew the nature of the instrument; and it was argued that, if such a subscription of their names satisfied the statute, the word "attested" would have no force whatever, and might as well have been omitted. But the court said the question was whether there was an acknowledgment in fact by the testator to the subscribing witnesses, though there was none in words, that the instrument was his will; for if, it said, by what the testator did he must, in common understanding and reasonable construction, be taken to have acknowledged the instrument to be his will, the attestation thereof must be considered as complete, within the principle and authority of Ellis v. Smith, 1 Ves. Jr. 11, decided in 1754. And it appearing that the testator knew the instrument to be his will, as it was written and signed by him; that he produced it to the three persons, and asked them to sign it, intending they should sign it as witnesses; that they subscribed their names thereto in his presence, and returned the same identical paper to him,-it was held that he acknowledged in fact to the witnesses, though not in words, that the instrument was his will, and that its execution was good under the statute; for, the court said, whatever might have been the doubt as to the true construction of the statute, the law was then fully settled that the testator need not sign his name in the presence of the witnesses, but that a bare acknowledgment of his handwriting is a sufficient signature to make their attestation and subscription good within the statute, though such acknowledgment conveys no intimation whatever, nor means of knowledge, either of the nature of the instrument or the testator's object in signing it; and that the facts of that case placed the testator and the witnesses in the same relation as though an oral acknowledgment of his signature had been made.

The same thing is held in Wright v. Wright, 7 Bing. 457. In Trimmer v. Jackson, 4 Burn, Ecc. Law (3d Ed.) 102, a will was estab

lished where the testator purposely misled the witnesses into supposing that it was a deed.

In Massachusetts they hold as they do in England, under a statute like ours in this respect. Thus, in Osborn v. Cook, 11 Cush. 532, 59 Am. Dec. 155, the testator signed the instrument in the presence of two of the witnesses, and pointed out his signature to the third witness, and each of the witnesses signed the instrument as a witness in the presence of the testator and at his request; but the testator did not disclose to any of the witnesses that it was his will, nor did any of them know or suspect the nature of the instrument, and yet it was held well executed. The court said that calling on the witnesses to attest his execution of an instrument, the character and contents of which he well knew, was, in effect, a declaration that the instrument he had signed, and his signature to which he desired them to attest, was his act, though the character of the instrument was not disclosed to them; that it was as if the testator had said: "This instrument is my act. It expresses my wish and purpose, and, though I do not tell you what it is, I desire you to attest that it is my act, and that I have executed and recognized it as such in your presence;" that the legislature had prescribed certain solemnities to be observed in the execution of a will that it may be seen that it is the free. conscious, intelligent, act of the maker, but that it had not prescribed that he should publish to the world nor to the witnesses what is in the will, nor even that it is a will.

Connecticut holds the same way, where the statute requires a will to be in writing, subscribed by the testator, and attested by three witnesses, all of them subscribing in his presence and in the presence of each other. Appeal of Canada, 47 Conn. 450. It is there said that the primary reason for requiring the presence of the witness is that he should be able to say that the testator put his name upon the identical piece of paper upon which he put his own; that the witness identifies the paper by the conjunction of the two signatures, not by the character of its contents. Allen v. Griffin, 69 Wis. 529, 35 N. W. 21, is to the same effect.

In Re Hulse's Will, 52 Iowa, 662, 3 N. W. 734, the same is held. There the statute requires a will to be witnessed by two competent witnesses. The court said that to witness means "to see the execution of an instrument, and to subscribe it for the purpose of establishing its authenticity," and referred to the English statute of frauds as containing a similar provision, and said it had been construed as not requiring publication in the sense of acquainting the witnesses with the nature of the instrument.

In Watson v. Pipes, 32 Miss. 451, the same is held under a statute taken from 29 Car. II. The court said that such seemed to be the holding in all the states in which the provisions of the English statute in regard to wills have been adopted; that the rule is based upon

the plain and obvious construction of the statute, which it did not hesitate to adopt.

The Alabama Code requires wills to be "attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." The predecessor of this statute was borrowed from 29 Car. II, c. 3, § 5. In Barnewall v. Murrell, 108 Ala. 366, 18 South. 831, the court said that, as the statute did not require the testator to inform the attesting witnesses that the instrument was his will, it was immaterial to the due execution of the will in that case whether the testatrix made any declaration to the attesting witnesses, or gave them any notice or information, that the instrument was her will.

In Schouler, Wills (3d Ed.) § 326, it is said to be the long-established doctrine, both of England and the United States, that, independently of an express statute requiring publication, à will may be duly executed without any formal announcement by the testator of a testamentary purpose, and without anything being said by him to show the nature of the instrument the witnesses are called upon to subscribe; that the maker's signature animo testandi, and his proper acknowledgment, showing that he has put his name bona fide upor the paper that he desires witnessed, when he has not signed in their presence, renders the execution valid in general, without any other or more formal execution; and that the signature of the witnesser being duly affixed, the act of execution becomes complete.

In Missouri, under a statute that is almost an exact transcript of 29 Car. II, c. 3, § 5, they hold that there must be some declaration by the testator that the paper is his will; but that it need not be verbal, that an act or a sign is enough; but that the witnesses must know it is the will of the testator, and witness it at his request. Odenwaelder v. Schorr, 8 Mo. App. 458. In support of this construction of the statute, Mundy v. Mundy, 15 N. J. Eq. 290, is referred to. But that case was decided under a statute that expressly required that the instrument should be "declared to be" the last will and testament of the testator; so no authority for the holding.

The contestants rely much upon Swift v. Wiley, 1 B. Mon. (Ky.) 114, where it is said that to attest the publication of a paper as a will, and to subscribe thereto the names of the witnesses, are very different things, and required for different ends; that attestation is an act of the mind, subscription an act of the hand; that to attest a will is to know that it is published as such, but to subscribe it is only to write on the paper the names of the witnesses for the sole purpose of identification. But this case is of little worth, for Flood v. Pragoff, 79 Ky. 607, expressly decides that it is not necessary that the witnesses should know the nature of the instrument, and says that the question never before arose in that state; and it hardly could have arisen in Swift v. Wiley, for there was a publication there by the testator, at which the witnesses were present. It is said in Flood v. Pragoff