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the time of making that act of parliament, and ever sin if a bond or deed had been signed by the party, who terwards *acknowledged it to be his hand-writing b fore witnesses, that was always considered to be e dence of the signing by the person executing, and a si ficient attestation by the subscribing witnesses; (1) ar the rule is precisely the same, where a note or declar tion of trust, or any other instrument which requires bare signing, is acknowledged before witnesses. analogy to these cases, it has been determined in tl case of wills, that the subscribing witness need not s the act of signing, but that it will be sufficient, if the te tator has acknowledged to them, either to each separat ly or to all at the same time, that the will is his, or th the signature is his hand-writing. (2) And the subscri ing witnesses need not express in their attestation, tha they subscribed their names in the presence of the te tator; but whether they did so subscribe, is a questio for the consideration of the jury, to be determined upo the evidence. (3)

The statute requires the witnesses to attest the signin and to subscribe, but does not direct that they shall b all present at the same time; and although an attestation and subscription by all the witnesses at the same time would be the best security against fraud and imposition by making each a check upon the other, yet in the in terpretation of the statute, courts of law early determin ed, and it is now an established rule of property, that the witnesses may subscribe at several times. (4) An attes

(1) 2 Ver. 457. See ante, p. 413.
(2) Stonehouse v Evelyn, 3 P. Wms.
253. Grayson v Atkinson, 2 Ves. 454.
Ellis v Smith, 1 Ves. jun. 11. Addy v
Grix, 8 Ves. jun. 504. Westbeech v
Kennedy, 1 Ves. & Beam. 362.

(3) Brice v Smith, Willes' Rep. I 4 Taunt. 217.

(4) Cook v Parsons, Prec. in Chan 185. Jones v Lake, 2 Atk. 177. in note. S. P. admitted in 2 Ves. 458. and in 1 Ves. jun. 14.

tation by a mark has been adjudged to be a sufficient subscription within the meaning of the statute. (1) (a)

It is not necessary that the testator should declare the instrument, executed by him, to be his will, or that the *witnesses should attest every page, or that every page should be particularly shewn to them. (2) The whole will, however, ought to be present at the time of attes tation; for if a person makes a will on several pieces of paper, and there are three witnesses to the last paper, and none of them ever saw the will, this is not a sufficient execution; (3) (b) But unless there is positive proof that the entire will was not in the room, the question, whether it was so or not, is a question of fact, to be left with all the particular circumstances of the case to the consideration of the jury. (4)

The witnesses are to attest and subscribe in the presence of the testator; and as the object of this provision was to guard against fraud, and prevent the substitution of a false will in the place of the true one, the obvious meaning of the statute must be, that the testator should be in such a state of mind, and in such a situation, as to be capable of seeing the witnesses in the act of subscribing. It will not be a good execution, if the testator was in a state of insensibility, (5) or if it was impossible for him to see the witnesses subscribe. "It is enough if the testator might see, it is not necessary that he should ac

(1) Harrison v Harrison, 8 Ves. jun. 185. Ady Grix, ib. 504.

(2) Bond v Seawell, 3 Burr. 1773. 1 Black Rep. 407. 422. 454.

(3) Lea v Libb, 3 Mod. 262. 1 Eq.
Cas. Ab. 403. S. P.

(4) Bond v Seawell, 3 Burr. 1773.
(5) Cater v Price, 1 Doug. 241.

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4381

** (a) Vide ante, 427. (n)

(b) A will executed in the presence of two subscribing witnesses, and a codicil executed in the presence of two subscribing witnesses, one of whom was different from the two witnesses to the will, although the codicil referred to the will and affirmed it, does not give effect to the will as to real property. Dunlap v Dunlap, Desau's Eq. Rep. 305.

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tually see them signing: for at that rate if a man should turn his head back, or look off, that would vitiate the will." (1) But if the jury find the fact, that the testator might have seen what was passing at the time of the subscribing, then it will be presumed in favour of the attes tation, that the testator actually saw what he might have seen. In one case, the testator was sick in bed, and the witnesses withdrew into a gallery, and there subscribed it, between which gallery and the bed-chamber (where the testator lay) there was a lobby with glass doors, and part of the glass was broken; (2) in another case, the testator lay in bed in *one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that and the door of the testator's room were open; (3) in a third case, the testatrix sat in her carriage opposite the window of her attorney's office, in which office the witnesses subscribed their names (4) in all these cases, (and in others, which might be mentioned to the same effect, differing only in their peculiar circumstances,) the execution was held to be sufficient, the material fact being proved, that the testator might have seen the attestation, if he had chosen to look.

If one of the subscribing witnesses can prove the execution, (as, that the testator signed in the presence of himself and two other witnesses, or that he acknowledg ed his signing to each of them, and that each of the witnesses subscribed in his presence,) this will be a sufficient proof of the will without calling the others. But if the witness, who is called, can only prove his own share in the transaction, as must happen, where the testator acknowledged his signing to the witnesses separately, the

(1) Shires v Glascock, 2 Salk. 687.
(2) Sir G. Sheers' case, cited Carth.

81.

(3) Davy and another v Smith, Salk. 395.

3

(4) Casson v Dade, I Brown. Ch. C. 99. See also Doe dem. Wright and others v Manifold, 1 Maule & Selw. 294.

other witnesses ought in that case to be called. (a) If they are dead, or insane, their hand-writing, and the hand-writing of the testator, ought to be proved; it will then be a question for the jury, whether under the circumstances of the case it is probable, that all the formalities of the statute were regularly observed. (1) The clause of attestation generally expresses, that the witnesses subscribed in the presence of the testator; but such a statement is not absolutely necessary; and though it is entirely omitted, the omission will not conclude the jury from finding, that the will was so subscribed. In the case of Croft v. Pawlet, (1) the attestation *was, that the will had been signed, sealed, published, and declared as his last will, in the presence of the subscribing witnesses; the witnesses being dead, and their signatures proved in the common way, it was objected, that this was not an execution according to the statute of frauds; for the signatures of the witnesses could only stand as to the facts to which they had subscribed, and signing in the presence of the testator was not one; but the Court were of opinion, that this was a matter of evidence to be left to the jury, and they gave a verdict in favour of the

will.

If a subscribing witness is abroad, who ought to be called if he could be produced, his hand-writing may be proved in the case of a will, as in cases on the execu tion of a deed, (b) and the rule appears to be the same in courts of equity. Thus where a question arose, whether it was necessary to send out commission to

(1) Hands v James, 2 Comyns' Rep. Brice v Smith, Willes' Rep. 1. S. P. 530. Croft v Pawlet, 2 Stra. 1109.

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(a) A will purporting to be signed by three witnesses and sworn to by two, whe say nothing with regard to the third subscribing witness, is sufficiently proved to go to the jury. Jackson v Vandycke, 1 Cox Rep. 23.

(b) Vide Hopkins v De Graffenried, 2 Bay 187.

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examine one of the witnesses, who was in Jamaica, L Alvanley, then Master of the Rolls, held that it was necessary to have his examination, but that the case the same, as if the witness were dead: (1) the heir at l he observed, did not make a point of it, but submitte to the Court; and he cited a case, where it was thou not only unnecessary, but very dangerous to send will abroad. And in another case, where it was jected that one of the witnesses was abroad, Lord Ch cellor Thurlow said, he doubted, whether the rule ever been laid down so largely, as that the will co not be proved without examining all the witnesses, though that had been the practice. (2)

If a subscribing witness should deny the execution the will, he may be contradicted as to that fact by a other subscribing witness; and even if they all swe that the will was not duly executed, the devisee wou be allowed to go into circumstantial evidence to prov the due execution. (3) If one of the subscribing w nesses impeach the validity of the will on the ground fraud, and accuse other witnesses, who are dead, of b ing accomplices in the fraud, the devisee may give ev dence of their general good character. (4)

When the subscribing witnesses are dead, and n proof of their hand-writing can be obtained, as must fr quently happen in the case of old wills, it will be suff [441; cient to prove the signature of the testator alone. In case, (5) where the hand-writing of two subscribin

(1) Ld. Carrington v Payne, 5 Ves. jun. 411.

(2) Powel v Cleaver, 2 Brown. Ch. C. 504. See Grayson v Atkinson, 2 Ves. 460.

(3) Austin v Willes, Bull. N. P.

264. Pike v Badmering, cited 2 Stra 196. Lowe v Joliffe, 1 Black. Re

365.

5.

(4) Vide supra, p. 232.

(5) M'Kenire v Fraser, 9 Ves. jun

+In Calthorpe v Gough and others, (4 T. R. 707. n. (a) 709. n. (†) a will thir ty years old was not proved by witnesses, and it was said at the bar, that prod was not necessary on account of the age of the will; and in support of this a cas