Chap. IV.

Witnesses

must attest

operative signature.

Intention to attest.

Form of signature.

The witnesses must attest the signature, which is intended as an execution of the will; and where there are several signatures, the attestation of any but that intended as an execution of the will is invalid to give effect to the will or any part of it. In bonis Martin, 6 N. of C. 694; 1 Rob. 712; Ewen v. Franklin, Deane, 7; 1 Jur. N. S. 1220; Sweetland v. Sweetland, 4 Sw. & T. 6; 34 L. J. P. 42; 13 W. R. 504; Phipps v. Hale, 3 P. & D. 166; In bonis Dilkes, 3 P. & D. 164.

The attesting witnesses must subscribe with the intention, that the subscriptions made should be a complete attestation of the will, and evidence is admissible to show whether such was the intention or not. In bonis Wilson, 1 P. & D. 269; In bonis Sharman, 1 P. & D. 661; Griffiths v. Griffiths, 2 P. & D. 300; In bonis Murphy, I. R. 8 Eq. 300.

Adding an address to, or correcting a signature already made, or writing a christian name when the witness is unable to complete his signature, is insufficient. In bonis Trevanion, 2 Rob. 315; 14 Jur. 919; Hindmarsh v. Chariton, 1 Sw. & T. 433; 8 H. L. 160; In bonis Maddock, 3 P. & D. 169; M'Conville v. M'Creesh, 3 L. R. Ir. 73.

So a witness writing the name of a second witness opposite the mark of the latter cannot be said to subscribe. In bonis Eynon, 3 P. & D. 92.

A signature made without any intention of attesting will be excluded from probate. In bonis Sharman, 1 P. & D. 661; In bonis Murphy, I. R. 8 Eq. 300; In bonis Smith, 15

P. D. 2.

Witnesses need not sign by name; initials, or a description, or a mark, are sufficient. In bonis Christian, 2 Rob. 110; 7 N. of C. 265; In bonis Martin, 6 N. of C. 694; In bonis Sperling, 3 Sw. & T. 272; 12 W. R. 354; In bonis Amiss, 2 Rob. 116; In bonis Ashmore, 3 Curt. 756.

But a seal is insufficient. In bonis Byrd, 3 Curt. 117.

One witness cannot sign for another. In bonis White, 2 N. of C. 461; In bonis Middleton, 33 L. J. P. 16; Re Duggins, 39 L. J. P. 24.

Nor can a third person sign for a witness. In bonis Cope, 2 Rob. 335; Pryor v. Pryor, 29 L. J. P. 114.

And a witness cannot sign in the name of another person. In bonis Leverington, 11 P. D. 80.

But a witness or a third person may guide the hand of the second witness, or may subscribe for the witness if the witness holds the top of the pen while the signature is being made. Harrison v. Elvin, 3 Q. B. 117; 2 G. & D. 769 ; In bonis Frith, 4 Jur. N. S. 288; 27 L. J. P. 6; In bonis Lewis, 31 L. J. P. 153; 7 Jur. N. S. 688; see In bonis Kilcher, 6 N. of C. 15.

The papers found at the testator's death to compose his will must, in the absence of proof to the contrary, be presumed to be the will executed by him. Gregory v. Queen's Proctor, 4 N. of C. 620; Marsh v. Marsh, 1 Sw. & T. 528; Rees v. Rees, 3 P. & D. 84.

Chap. IV.

Chap. V.

Blank spaces.

Evidence

when alterations made.

Presumption

as to alterations.

CHAPTER V.

ALTERATIONS, INTERLINEATIONS, AND ERASURES.

It is immaterial that the will contains blank spaces or even a blank page. Corneby v. Gibbons, 1 Rob. 705; In bonis Rice, I. R. 5 Eq. 176; In bonis Wotton, 3 P. & D. 159.

Oral and written declarations of a testator made before or after the execution of the will are admissible in evidence for the purpose of showing what were the constituent parts of the will at the time of execution. Gould v. Lakes, 6 P. D. 1.

Where a will contains obliterations, additions, or other alterations, evidence must, if possible, be produced to show when they were made. In bonis Hindmarch, 1 P. & D. 307; In bonis Duffy, I. R. 5 Eq. 506; Moore v. Moore, I. R. 6 Eq. 166; In bonis Tonge, 66 L. T. 60.

For this purpose declarations of the testator with regard to his testamentary intentions made before the date of the will are admissible. Doe v. Palmer, 16 Q. B. 747; In bonis Sykes, 3 P. & D. 26; Dench v. Dench, 2 P. D. 60.

The fact that a date earlier than the date of the will is annexed to alterations is not alone sufficient to show that they were made before execution. In bonis Adamson, 3 P. &

D. 253.

As to the proper inference where there is evidence that some at least of the alterations in a will were made before execution, See Williams v. Ashton, 1 J. & H. 115; Moore v. Moore, I. R. 6 Eq. 166; Doherty v. Dwyer, 25 L. R. Ir. 297.

Alterations made in ink before execution will be presumed to be final. Gann v. Gregory, 3 D. M. & G. 780; Ibbott v. Bell, 35 B. 395.

Chap. V.

alterations.

Alterations made before execution in pencil, the will being written in ink, are prima facie deliberative, and the original Deliberative writing will have effect. Hawkes v. Hawkes, 1 Hag. 322; Edward v. Astley, ib. 490; Ravenscroft v. Hunter, 2 ib. 68; Parkin v. Bainbridge, 3 Phillim. 321; Lavender v. Adams, 1 Add. 403; Bateman v. Pennington, 3 Moo. P. C. 223; Francis v. Grover, 5 Ha. 39; In bonis Hall, 2 P. & D. 256 ; In bonis Adams, ib. 367. See In bonis Bellamy, 14 W. R.

501.

as to date of

Alterations and additions made in a will complete without Presumption them must be presumed, in the absence of evidence, to have alteration. been made after the execution of the will or any subsequent codicil. Cooper v. Bockett, 4 N. of C. 685; 4 Moo. P. C. 419; Simmons v. Rudall, 1 S. N. S. 115; Greville v. Tylee, 7 Moo. P. C. 320; Gann v. Gregory, 3 D. M. & G. 780; Doe v. Palmer, 16 Q. B. 747; Williams v. Ashton, 1 J. & H. 115; Christmas v. Whinyates, 3 Sw. & T. 81; In bonis Sykes, 3 P. & D. 26.

Alterations and additions made in a will which would be incomplete without them, must be presumed to have been made before execution. In bonis Cadge, 1 P. & D. 543; Birch v. Birch, 1 Rob. 675; 6 N. of C. 581; In bonis Swinden, 2 Rob. 192; Greville v. Tylee, 7 Moo. P. C. 320; In bonis Birt, 2 P. & D. 214; In bonis Adams, ib. 367; In bonis King, 23 W. R. 552. See, however, In bonis White, 30 L. J. P. 55.

after date of

s. 21.

Interlineations and alterations made in a will which is after- Alterations wards confirmed by a codicil are admitted to probate if it appears will and from the codicil or otherwise that they were made before the before codicil. execution of the codicil. Tyler v. Merchant Taylors', 15 P. D. 216; In bonis Heath, (1892) P. 253. The Wills Act (1 Vict. c. 26), sect. 21, enacts that no oblitera- Wills Act, tion, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as herein before is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or

T.W.

D

Chap. V.

Obliteration complete.

on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.

An alteration opposite which the testator and two witnesses have set their initials in the margin is sufficiently executed under this section. In bonis Blewitt, 49 L. J. P. 31 ; 5 P. D. 116; see, too, In bonis Treeby, 3 P. & D. 242; In bonis Shearn, 50 L. J. P. 15.

A sentence commenced on the second page and carried over to the third was admitted to probate, though the testator and witnesses had initialed only the second page. In bonis Wilkinson, 6 P. D. 100.

Where the original is completely obliterated and not ascertainable, the will must be considered blank, so far as the obliteration, interlineation or other alteration is concerned. In bonis Ibbetson, 2 Curt. 337; Townley v. Watson, 3 Curt. 761 ; In bonis James, 1 Sw. & T. 238; Doherty v. Dwyer, 25 L. R. Ir. 297.

The Court will only endeavour to discover the original by the use of glasses or similar means, and not by the use of chemicals, or removal of any substance from the will. In bonis Beavan, 2 Curt. 369; In bonis Horsford, 3 P. & D. 211; In re Nelson, I. R. 6 Eq. 569. See Lushington v. Onslow, 6 N. of C. 183; Ffinch v. Combe, (1894) P. 191.

But where a testatrix wrote something on the back of a codicil and subsequently pasted a piece of blank paper over the writing, it was held that the paper might be removed. In bonis Gilbert, (1893) P. 183.

It appears to be clear that no external evidence would be admitted to show what the original words were, except in a case of dependent relative revocation (see post, p. 39). In bonis Horsford, 3 P. & D. 211; In re Nelson, I. R. 6 Eq. 569. See Townley v. Watson, 3 Curt. 761; Jeffery v. Cancer Hospital, 57 L. T. 600.

The decision of the Probate Division upon a question of interlineation will be adopted upon a question relating to a devise of realty under the same will. In re Cruttenden; Davey v. Lansdell, 30 W. R. 57.