*[383]

will and testament," and he thereby devised the lands in question, and put his seal, but did not subscribe his name; but three witnesses subscribed the will in his presence. And whether this was a good will to pass land within the statute of frauds, was the question. After several arguments, it was adjudged by the whole court, consisting of North, Chief Justice, and Wyndham, Levinz, and Charlton, Justices, to be a good will, for being written by himselft, and his name being in the will, it was a sufficient signing within the statute, which did not appoint where the will should be signed, at the top, bottom, or margin, and that, therefore, a signing in any part was sufficient. And soon after, in the 37th year of the same King, the doctrine was stated still more loosely by Lord Chief Justice Jefferies, who, the report(g) says, seemed to hold, that a will written all by a testator's own hand, and declared in the presence of three credible witnesses, would be within the intention of the statute, though it were not signed by him (according to the words of the act) in the presence of three credible witnesses. This doctrine has been acceded to as settled whenever it has since come under consideration. have seen, that in Stokes v. Moore,(h) the case of an agreement was said to be like that of wills, upon which it had been determined, that the testator's writing his name in the introduction of the will, was a good signing within the statute. And in the late case of Coles v. Trecothic,(135) Lord Eldon took notice, that it had been often held in respect to wills, that if a testator begins his will with the formal introduction of "I, A B do make this my last will," it was a sufficient signing.

We

†The Emperors Theodosius and Valentinian allowed every holograph testament to be available, though made without witnesses.Novell. Theod. lib. 2. tit. 4.

(135) 9 Vez. jun. 249. But his Lordship seemed to think, that for this formal introduction to be a sufficient signing, it should be one simultaneous act, and that the whole act or intended instrument should be in the contemplation of the testator at the time of his writing such formal introduction And in this view it may deserve consideration, how far, if a will be written on different pieces of paper, or at differ ent times, such a formal beginning will be equivalent to a regular signing.

testator begins to sign in regular form, and does not complete it,

is not satis

[384]

In the case of Wright v. Price,(i) however, a distinction was But if the taken which manifested a disposition to impose some limits on this latitude of interpretation. According to which case it appears, that if the testator shows an intention to subscribe the will in regular form, by beginning to write his name at the bottom, the statute, but being overtaken by weakness or incapacity, before he has as it seems, completed such intention, he becomes incapable of executing fied. his purpose, this will not be a sufficient signing within the act. In that case, a will had been prepared in five sheets, and a seal affixed to the last, and, likewise, the form of attestation was written upon it, and the will was read over to the testator, who set his anark to the two first sheets, and attempted to set it to the third, but being unable from the weakness of his hand, he said, "he could not do it, but that it was his will." And on the following day, being asked if he would sign his will, he said, "he would," and attempted to sign the two remaining sheets, but was not able to do it. The case was decided upon another ground, but the Court of King's Bench seemed to be of opinion, that this was not a sufficient signing; for the testator, when he signed the two first sheets, had an intention of signing the others; he did not, therefore, mean the signature to the two first sheets, as the signature of the whole will; and, consequently, there never was a signature of the whole, but only a beginning to sign.

In Lemayne v. Stanley, the writing of the name in the introduction of the will, was all the signing contemplated by the testator, and as far as such a mode could be held a literal accomplishment of the statute, his intention in respect to his will was completed, his mind being in no suspense, nor looking to any further or future act of authentication. But in Wright v. Price, the testator expressly announced an intention to authorise the instrument in a regular and solemn way, and therefore his will seemed to be inchoate till this was done; why it was not done was to be explained; and so the case could only be established by those floating parol proofs, which it was the object of the statute to exclude. The distinction is subtle, and is a specimen of the difficulties by which courts of justice have embarrassed themselves, by endeavours to leave the legislature behind in the progress of national jurisprudence.

(i) 1. P. Wms. 771, note; and vide supra, 122.

Whether sealing is signing. * 385]

[386]

In the case of Lemayne v. Stanley, above cited, three of the judges, including the chief, were of opinion, that the testator, by putting his seal to the will, had sufficiently signed within the statute, for they said that a signum was no more than a mark, and sealing was a sufficient mark that it was his will. In Warneford v. Warneford,(k) which, after a long interval, seems to have been the next case in which this question came to be considered, it is said to have been held by Lord Raymond, on an issue out of Chancery of devisavit vel non, that sealing a will was a signing within the statute of frauds. We are to observe, that in Lemayne v. Stanley, the opinion of the judges must be regarded as spoken obiter, the case being decided on the ground of the sufficiency of the insertion of the name in a will, written by the testator; and the point in Strange, as stated only in a short note, was agitated at nisi prius only. But this doctrine was but ill received in the subsequent case of Smith v. Evans,(/) wherein Lord Chief Baron Parker, Baron Clive, and Baron Smith (in the absence of Baron Legg) are stated to have said, that the opinion of the three judges in Lemayne v. Stanley was very strange; for that if it were so, it would be very easy for one person to forge another man's will, by only forging the names of any two persons dead, for he would have no occasion to forge the testator's hand. And the same judges declared, that if the same thing should come into question again, they would not hold that sealing a will only, was a sufficient signing within the statute. The Chief Baron seems to have been less resolved on the same question, in the opinion delivered by him in Ellis v. Smith,(m) in which he thus expressed himself: "As to the point, whether sealing be signing; I own I think it is not; for the character and hand-writing are necessary, and were designed to prevent or detect frauds and impositions. But, however, said his Lordship, as in some cases it has been thrown out obiter, and in one case decreed, that it is equal to signing, I shall submit my opinion." But Willes, C. J. said decidedly in the same case, that he did not think sealing was to be considered as signing; and he added, that *he declared so then, because, if that question ever came before him, he should not think himself precluded from weighing it thoroughly, and decreeing, that it was (m) Reported in 1 Vez.

(k) 2 Strange, 764. (/) 1 Wils, 313. jun. 11.

not signing, notwithstanding the obiter dicta, which in many cases were nunquam dicta, but barely the words of the reporters; for, upon examination, he had found that many of the sayings ascribed to that great man, Lord Chief Justice Holt, were never said by him.(136)

The opinion of Sir John Strange, Master of the Rolls, was on this point correspondent to that declared by the Chief Justice. He observed, that he was not convinced that sealing was signing; for sealing identified nothing; it carried no character; and most seals were affixed by the stationers, who prepared the paper. Lord Hardwicke did not, according to the report, speak in this case, as to the question of sealing, but in a case which had been determined by him two years before,(n) his Lordship had expressed himself in stronger language, to the same effect with the Lord Chief Justice Willes and Sir J. Strange; he then declared, "that the statute, by requiring the will to be signed, undoubtedly meant some evidence to arise from the hand-writing; then how could it be said, that putting a seal to it would be a sufficient signing for any one may put a seal; no particular evidence arises from a seal; common seals are alike; no certainty or guard therefore arises from thence."

Till a late case, which will be presently produced, it was a considerable doubt with the profession, whether, if a testator or witness, could not write his name, he might satisfy the statute by making his mark. In the case of Lemayne v. Stanley, as it is reported in Freeman,(0) it is said that the *court were of opinion, that it was not necessary for the testator to write his name, for some cannot write, and there their mark is a sufficient signing. But this opinion, though entitled to great deference, as being stated to have been that of the court, and not of a single judge, yet, as being uncalled for by the facts of the case, must be regarded as extrajudicial. Hudson's case,() which was determined about a year after Lemayne v. Stanley, where two

(n) Grayson v. Atkinson, 2 Vez. 459. (0) Freem. Rep. 538. (p) Skin. 79.

(136) See Show. 69, Lea v. Libb, where Lord Holt is said to have held sealing to be a signing.

Whether making a mark, where the party is unable to write, is a sufficient signing or subscribing. *[387]

Whether

sealing is signing. 385]

"(588)

In the case of Lemayne v. Stanley, abo publish the writing judges, including the chief, were of o by putting his seal to the will, had statute, for they said that a si

and sealing was a sufficient r
ford v. Warneford,(k)
have been the next c
sidered, it is said

issue out of C

was a signin
that in L

regard
of t

and, and J. S. made his da case, to be admitted as

John Strange in the above cited question as to sealing, do certainly testator's mark, for it identifies no

character. But in the late case of Harrison

decided by Lord Eldon, that the attestamark, was good within the statute; and as the attestators to subscribe, and the testator thought that the principle of this determination a fortiori to the signature of the testator himself, subscribe' seems much more forcibly to point artal hand-writing, than "sign" which, without any

word

6

rain upon its grammatical sense, though, perhaps, not without

crifice of its popular and usual acceptation, might be

deemed to be satisfied by any symbol of the testator's consent and

ratification. †

In the above-mentioned case of Harrison v. Harrison, the

question was made upon a bill by devisees against the heir, *whether the will was duly executed to pass real estate according to the statute of frauds, one only of the witnesses having subscribed his name, the two others having attested by setting their marks respectively. Lord Chancellor Eldon observed, that upon inquiry from Mr. Serjeant Hill, he had found, that there was a special case reserved in the Court of Common Pleas whether, a will devising real estate was well executed, one of the witnesses being a marksman; and it was held clearly sufficient. It was a case of Gurney v. Corbet in 1710, in a note book, which was the property of Mr. Justice Burnet. His Lordship said, he thought there might have been a great deal of argument upon it originally. But upon this authority the plaintiff must take a deIn a few months afterwards, the same point was determin

cree.

(q) 8 Vez. jun. 185.

†The counsel for the plaintiff is stated to have adverted to the difference of expression in the statute, with reference to the witnesses and the devisor; and to have remarked the difficulty of making the proof, in case of the witnesses being dead.