s. 9. 1 Vict. c. 26, write what the Court presumed to be her signature, it was held sufficient, although they did not see the signature, and she did not acknowledge it to them (Smith v. Smith, L. R. 1 P. & M. 143). Acknowledgment of signature in presence of witnesses. Attestation and subscription by wit nesses. There is no sufficient acknowledgment unless the witnesses either saw or might have seen the signature, not even though the testator should expressly declare that the paper to be attested by the witnesses is his will, or state that his signature is inside the will (Blake v. Blake, 7 P. Div. 102; following Hudson v. Parker, 1 Rob. 14; and disapproving of Becket v. Howe, L. R. 2 P. & M. 1; and Gwillim v. Gwillim, 2 Sw. & Tr. 200). Where a will is signed by the testator before the witnesses are called in, the mere circumstance of calling in witnesses to sign without giving them any explanation of the instrument, does not amount to a sufficient acknowledgment (Ilott v. Genge, 4 Moo. P. C. 265; Re Swinford, L. R. 1 P. & M. 630; Pearson v. Pearson, L. R. 2 P. & M. 451). It is not, however, necessary that the testator should say in express terms to the witnesses "That is my signature.' A request for subscription has been held sufficient (Keigwin v. Keigwin, 3 Curt. 607; Re Ashmore, Ib. 756; Gaze v. Gaze, Ib. 451; Re Davies, 2 Rob. 337; Re Claridge, 39 L. T. 612; Daintree v. Butcher, 13 P. Div. 102). Where the request for subscription was made to the witnesses by a third party in the presence of the testatrix who said no word during the proceeding, there was a sufficint acknowledgment (Inglesant v. Inglesant, L. R. 3 P. & M. 172; Re Bishop, 30 W. R. 567; but see Morritt v. Douglas, L. R. 3 P. & M. 1). Where A. placed his seal on the paper, and delivered it as his act and deed, it was held there was no sufficient acknowledgment (Re Sumners, 2 Rob. 295). (m) It has long been settled, that after a will has been signed or acknowledged by the testator, there must be the subscription of the witnesses in the presence of the testator (White v. British Museum, 6 Bing. 310). To make a valid subscription and attestation to a will there must be either the name of the witness or some mark intended to represent it. A correction of an error in a previous writing of the witness's name, or his acknowledgment of it, or the adding of a date to it, will not be sufficient for that purpose (Hindmarsh v. Charlton, 8 H. L. C. 160). Nor the adding of an address (Re Trevanion, 2 Rob. 315). Nor the acknowledgment by a witness of his signature by putting a dry pen over it (Hindmarsh v. Charlton, 8 H. L. C. 160; Playne v. Scriven, 1 Rob. 772). The court must be satisfied that the act done by the witness was intended by him to evidence his attestation. Where a man wrote the word "witness," it was held an insufficient attestation (Re Eynon, L. R. 3 P. & M. 92); also where another after writing his christian name was unable through feebleness to complete his signature (Re Maddock, L. R. 3 P. & M. 169). The initials of attesting witnesses to a testamentary paper are a sufficient subscription under this act (Re Christian, 2 Rob. 110; Re Martin, 6 Not. Cas. 694; Re Blewitt, 5 P. D. 116; Margary v. Robinson, 12 P. D. 8). Where one of the attesting witnesses subscribed his description, without signing his name, it was held sufficient (Re Sperling, 12 W. R. 354). A will may be attested by the witnesses making marks (Re Amiss, 2 Rob. 116); and the testator may write the names of the witnesses opposite their respective marks (Re Ashmore, 3 Curt. 756). But an attesting witness, able to write, cannot subscribe for another witness who is unable to write (1 Not. Cas. 456). A husband who is witness to a will cannot also subscribe for his wife (Re White, 2 Not. Cas. 461); nor a wife for her husband (Re Duggins, 39 L. J. Prob. 34). A will was attested by one witness in his own handwriting. He also held and guided the hand of a second witness who could neither read nor write, this was held sufficient (Harrison v. Elvin, 3 Q. B. 117; Re Frith, 27 L. J. Prob. 6). Where the names of two attesting witnesses to a will, who were unable to write, were written by another person whilst they held the top of the pen, the will was duly attested (Re Lewis, 31 L. J. Prob. 153; see Re Cope, 2 Rob. 335). 8. 9. For a case where the name of the witness was erased by the testator and 1 Vict. c. 26, re-written by the witness, see Re Coleman (2 Sw. & Tr. 314); and for a case where the signatures of the witnesses were sworn to be in the handwriting of the testator, see Re Lee (4 Jur. N. S. 790). If both the witnesses are dead, it will not be presumed that they did not both sign at the same time, from the difference in the colour of the ink (Trott v. Trott, 29 L. J. Prob. 156). It is not necessary that the name of the witness should be written upon the same side of the paper on which the name of the testator occurs (Re Chamney, 1 Rob. 757; Woodhouse v. Balfour, 13 P. D. 2; Margary v. Robinson, 12 P. D. 8); but the court must be satisfied that the name of the witness was subscribed for the purpose of attesting the testator's signature (Re Wilson, L. R. 1 P. & M. 269; Griffiths, v. Griffiths, L. R. 2 P. & M. 300; see Re Streatley, 1891, P. 172); and the testator's signature attested must be the operative one (Sweetland v. Sweetland, 4 Sw. & Tr. 6; Ewen v. Franklin, 1 Jur. N. S. 1220; Re Dilkes, L. R. 3 P. & M. 164; Phipps v. Hale, ib. 166). The attestation of the witness if not on the same sheet of paper as the signature of the testator must be on paper physically connected therewith (Re Braddock, 1 P. D. 433; Re Hatton, 6 P. D. 204). The execution must be attested by the witnesses in the actual or con- Testator's structive presence of the testator (Newton v. Clarke, 2 Curt. 320; Tribe v. presence. Tribe, 1 Rob. 275; Longford v. Eyre, 1 P. W. 740; Casson v. Dade, 1 Br. C. C. 99). Even in the case of a blind person it must appear that the will was so attested that the testator, if he had had his eyesight, could have seen the witnesses subscribe (Re Piercy, 1 Rob. 278). Where the subscription of the witnesses takes place in a different room from that in which the testator is, he must be proved to have been in a position whence he could have seen the witnesses as they subscribed their names (Norton v. Bazett, 3 Jur. N. S. 1084; Jenner v. Ffinch, 5 P. D. 106). But it is not necessary that the witnesses should subscribe in the presence of each other (Faulds v. Jackson, 6 Not. Cas. Suppl. 1; Re Webb, 2 Jur. N. S. 309). (n) Although a will may be valid without any attestation clause (Bryan Attestation v. White, 2 Robert. 315), yet one should be added; otherwise, in order to clause should obtain probate, it is necessary to have an affidavit of one of the subscribing be added. witnesses to prove that the provisions of the act, in reference to the execution of the will, have in fact been complied with (Belbin v. & Tr. 148). Skeats, 1 Sw. If upon the face of a will to which there is no memorandum of attesta- Presumption tion there be the signature of the testator at the foot or end thereof, and in favour of the subscriptions of two witnesses; in the absence or death of the wit- due execution nesses, the prima facie presumption is, that the testator signed in the in absence of joint presence of the two witnesses, and that they subscribed in his evidence. presence. If the subscribing witnesses do not remember the facts attendant upon the execution of the will, the presumption is the same (Burgoyne v. Showler, 1 Rob. 5; Foot v. Stanton, 2 Jur. N. S. 380; Re Torre, 8 Jur. N. S. 494; Re Colyer, 14 P. D. 48; Woodhouse v. Balfour, 13 P. D. 2; Vinnicombe v. Butler, 13 W. R. 392; Re Puddephatt, L. R. 2 P. & M. 97). Where, however, the witnesses negative compliance with the requisites of Evidence the act, the will cannot be supported unless their evidence be rebutted by showing that proof of circumstances, showing that the witnesses cannot be credited, or statutory rethat from the facts and circumstances which they state their recollection quisites were fails them (Re Ayling, 1 Curt. 913; Gove v. Gawen, 3 Curt. 151; Pennant not complied v. Kingscote, Id. 642; Bennett v. Sharp, 1 Jur. N. S. 456; Leech v. Bates, with. 1 Rob. 714; Noding v. Alliston, 14 Jur. 904; Glover v. Smith, 57 L. T. 60; Crofts v. Crofts, 13 W. R. 526; Wright v. Rogers, L. R. 1 P. & M. 678; Bailey v. Frowan, 19 W. R. 511). Where witnesses have deposed, the one positively that the will was not executed in the testator's presence, and the other as positively declared that it was, the court has given the preponderance to the witness deposing affirmatively in accordance with the statement set forth in the attestation clause (Brenchley v. Still, 2 Rob. 1 Vict. c. 26, 176, 177; Farmar v. Brock, 1 Deane, 187; 2 Jur. 670). Declarations by the testator are inadmissible (Sugden v. St. Leonards, 1 P. D. 227). s. 9. Although a testamentary instrument is not properly executed or attested, Invalid yet, if it is clearly referred to by one of later date properly executed and testamentary attested, it will be operative, and no particular form of expression is necesinstrument rendered valid sary; therefore, where there was a will duly executed, then a codicil attested by subsequent by one witness only, and lastly, a codicil duly executed, which was deinstrument scribed as "another codicil to my will," the second codicil was held to give duly executed. operation to the first codicil (Ingoldby v. Ingoldby, 4 Not. Cas. 439; Re Hilhouse, 1 Eccl. & Adm. Rep. 111). It would be the same if the will were informally executed, but a codicil duly executed were to be described as a codicil to his last will (Hill's Case, 4 Not. Cas. 404; Hally's Case, 5 Not. Cas. 510); it is not properly a question of incorporation (See Id. 512). Alterations of a will made after its execution were held confirmed by subsequent execution of a codicil which did not, however, refer to them (Tyler v. Merchant Taylors' Co., 15 P. D. 216). Incorporation of unattested papers. Paper must be in existence, Where a testator directed that in a certain event a former will which had been revoked by marriage should be revived, the former will was included in the probate (Re Bangham, 1 P. D. 429); but where a testatrix purported by a codicil to revive a will not only revoked but destroyed, the court refused to grant probate of the draft (Hale v. Tokelove, 2 Robert. 318; Rogers v. Goodenough, 2 Sw. & Tr. 342; see Re Steele, L. R. 1 P. & D. 577). An unattested paper, which would have been incorporated in an attested will or codicil executed according to the Statute of Frauds, is now in the same manner incorporated, if the will or codicil is executed according to the requirements of this section (Allen v. Maddock, 11 Moore, P. C. 427; see Anderson v. Anderson, 13 Eq. 381). The paper to be incorporated need not be void or valid per se, and whether of itself void or valid is equally entitled to probate (Sheldon v. Sheldon, 1 Robert. 81; and see Dicken's Case, 3 Curt. 60; Willesford's Case, Ib. 77; Bacon's Case, 3 Not. Cas. 644; Smartt's Case, 4 Not. Cas. 38; Darby's Case, 4 Not. Cas. 427). But the paper intended to be incorporated must be shown to have been in existence at the time the will was executed (Singleton v. Tomlinson, 3 App. Cas. 404; Ferraris v. Hertford, 3 Curt. 468; Re Watkins, L. R. 1 P. & D. 19; as to lists of articles referred to, see Re Ash, 2 Jur. N. S. 526; and as to a paper coming into existence between the execution of a will and a codicil, see and capable of Re Truro, L. R. 1 P. & M. 201; Re MacGregor, 60 L. T. 840). And the identification. paper must be clearly identified with the description of it given in the will (Singleton v. Tomlinson, sup.; Smart v. Prujean, 6 Ves. 565; Von Straubenzee v. Monck, 11 W. R. 109; Re Norris, 14 W. R. 348; see Re Daniell, 8 P. D. 14; Symes v. Appelbe, 57 L. T. 599). Where there is a reference in a duly executed testamentary instrument to another testamentary instrument imperfectly executed, but by such terms as to make it capable of identification, it is necessarily a subject for the admission of parol evidence, and such parol evidence is not excluded by this statute (Allen v. Maddock, 11 Moore, P. C. 427; see Wigram on Evid., prop. 5). The principle of this case, however, will not be extended (Re Greves, 1 Sw. & Tr. 250; 7 W. R. 86). Thus, where a codicil referred to "the last will of me," parol evidence was admitted to identify the will (Re Heathcote, 6 P. D. 30). But where the will did not refer to a document as then existing, the court refused to receive parol evidence, to show that the document was written before the will was signed (Re Dallow, L. R. 1 P. & M. 189; Re Sunderland, Ib. 198). A reference in a will to documents "accompanying this my will," was held an insufficient identification (Re Yockey, 29 L. T. 699). Where the will, if read as speaking at the date of the codicil, contains language which would operate as an incorporation of a document, such document is entitled to probate by force of the codicil, although not in existence until after the execution of the will (Re Truro, L. R. I P. & M. 201; see Re Macgregor, 60 L. T. 840). Effect of codicil on papers referred to in will. Probate of incorporated documents. In requiring the probate of an incorporated document the court exercises a discretion, and does not require it where the person having custody of the document refuses to produce it (Re Sibthorp, L, R. 1 P. & M. 106); 8. 9. or where the document is bulky, or cannot be found (Quihampton v. Going, 1 Vict. c. 26, 24 W. R. 917). Where a foreign will was confirmed by an English will, probate of both was required (Re Howden, 30 L. T. 768; see Re Donaldson, L. R. 3 P. & M. 45; Re Bolton, 12 P. D. 202). Secus, where there was no such confirmation (Re Astor, 1 P. & D. 150; see Re De la Rue, 15 P. D. 185; Re Callaway, Id. 147; Re Seaman, 1891, P. 253; Re Fraser, Id. 285). As to probate of an English translation of a French will, see Re Cliff (1892, 2 Ch. 229). Whether probate be granted or not the incorporated document will be regarded as part of the will (Bizzey v. Flight, 3 Ch. D. 269; Quihampton v. Going, sup., a case of memoranda in ledger as to advances). Even where not incorporated such memoranda may be prima facie evidence as to advances (Whately v. Spooner, 3 K. & J. 542; see Smith v. Conder, 9 Ch. D. 170). Probate has been granted of a document in the form of a deed poll, Will in form properly executed, upon evidence that it was intended as a will (Re Slimm, of a deed. 15 P. D. 156; Milnes v. Foden, Id. 105; see Re Colyer, 14 P. D. 48). executed like 10. No appointment made by will, in exercise of any Appointments power, shall be valid, unless the same be executed in manner by will to be herein before required; and every will executed in manner other wills, hereinbefore required shall, so far as respects the execution and to be vaand attestation thereof, be a valid execution of a power of lid, although other required appointment by will, notwithstanding it shall have been ex- solemnities pressly required that a will made in exercise of such power are not obshould be executed with some additional or other form of served. execution or solemnity (0). (0) This section applies to powers created since as well as before the act (Hubbard v. Lees, L. R. 1 Ex. 255). Where a power requires specifically a will with the solemnity of sealing in addition to those solemnities rendered necessary by the statute, this section applies; and declares that a will without such additional solemnity shall be sufficient; but the section does not touch the case of a power requiring an instrument in writing, sealed and delivered. Such a power was accordingly held not to have been duly exercised by a will executed in conformity with this act (Taylor v. Meads, 4 D. J. & S. 597, 602; following West v. Ray, Kay 385; Collard v. Sampson, 4 D. M. & G. 224; and overruling Buckell v. Blenkhorn, 5 Ha. 131; Man v. Ricketts, 7 Beav. 93; see Orange v. Beckford, 4 Drew. 363; Sugden, Pow., 217-221, 8th ed.) Publication of a will is equivalent to delivery. Accordingly, where a power was required to be exercised by instrument in writing signed, sealed, and delivered by the donee in the presence of witnesses, it was held well executed by a will "signed, sealed, published and acknowledged, and declared by the donee to be her last will," in the presence of witnesses (Smith v. Adkins, 14 Eq. 402). A testamentary instrument signed, but invalid for want of attestation, is Unattested not a good execution of a power to appoint by writing signed, or by will instrument. (Re Daly, 25 Beav. 456). of domicile. A will in execution of a power, invalid according to the law of the domi- Power well cile, but valid according to English law, was admitted to probate (Re Hally- executed by burton, L. R. 1 P. & M. 90; see Baxendale v. De Valmer, 57 L. T. 556). will valid acA power to appoint personal property "by will duly executed," given to cording to law an English lady who died domiciled abroad, was held duly executed by a will invalid according to English law, but valid according to the law of her domicile, and admitted to probate in England (D'Huart v. Darkness, 34 Beav. 324); but a power to appoint property "by will executed in the presence of one or more witnesses," was held not to have been executed by an unattested codicil made in France and admitted to probate under 24 & 25 Vict. c. 114 (Re Kirwan, 25 Ch. D. 373). As to the execution of powers by deed, see 22 & 23 Vict. c. 35, s. 12 (post). 1 Vict. c. 26, Soldiers and wills excepted. Law before Statute of Soldiers. an accepted Volunteer who proededs to barracks under orders is. even on refore the arrival of the embarcation offer, in Expedition & within this provision. In bonis Hiscock XVII.T.L.R. 110. Seamen. At sea. 11. Provided always, and be it further enacted, that any soldier being in actual military service (p), or any mariner or seaman being at sea (q), may dispose of his personal estate as he might have done before the making of this act. (p) According to the law existing before the Statute of Frauds, "Testaments as regarded personal property might be either written or verbal, otherwise called nuncupative; of which the former were committed to writing and published or declared by the testator as his will, the latter depended on merely oral evidence, being declared by the testator in extremis before a sufficient number of witnesses, and afterwards reduced to writing written wills of personalty needed not in general any witnesses and though written in another man's hand and never signed by the testator, yet if it proved to be according to his instructions and approved by him, it hath been held a good testament of the personal estate" (2 Steph. Com. 202, 203, 5th ed.) The Statute of Frauds (29 Car. II. c. 3), which restricted the mode of making wills, contained an exception in favour of the wills of soldiers in actual military service, and of seamen being at sea: and this exception has been continued by the present section. In the case, however, of wills disposing of the wages or effects of merchant seamen, regard must be had to 17 & 18 Vict. c. 104, s. 200, and in the case of wills of petty officers and seamen in the Royal Navy, and of marines and non-commissioned officers of marines, so far as the same relate to money payable by the Admiralty or effects or money in charge of the Admiralty, regard must be had to 28 & 29 Vict. c. 72. V. The privilege granted by sect. 11 is confined, so far as regards soldiers, by the insertion of the words, "actual military service," to those who are on an expedition; and, consequently, it has been decided that the will of a soldier made while he was quartered in barracks, either at home (Drummond Parish, 3 Curt. 522), or in the colonies (White v. Repton, 3 Curt. 818; Re Phipps, 2 Curt. 368; Re Johnson, 2 Curt. 341), is not privileged. The same was held as to the will of a soldier made at Bangalore, in the East Indies, whilst in command of the army there stationed, and who died whilst on a tour of inspection of the troops under his command (Re Hill, 1 Rob. 276). But where an officer was on his way from one regiment to another, both regiments being at the time on active service, it was held that his will was privileged (Herbert v. Herbert, D. & Sw. 10). An unattested will, made by an officer on service at Berbice, was allowed to pass as that of a soldier in actual military service at the prayer of the party whose interest was prejudiced by such will (Re Phipps, 2 Curt. 368). The term "soldier" in this section extended to persons in the military service of the East India Company (Re Donaldson, 2 Curt. 386). As to obtaining probate of soldiers' wills privileged under this section, see Re Hackett (28 L. J. Prob. 42); Re Neville (1b. 52); Re Thorne (4 Sw. & Tr. 36). Alterations occurring in a will made by a soldier in actual military service will be presumed to have been made during such service (Re Tweedale, L. R. 3 P. & M. 204). (9) The term "mariner or seaman " does not exclude any person in her Majesty's navy, though superior of the ship being "at sea," from the exception contained in this act (Re Hayes, 2 Curt. 338). The section applies to the purser of a man-of-war (Ib.), and to a surgeon in the navy (Re Saunders, L. R. 1 P. & M. 16), and to seamen, whether in the Queen's or merchant's service (Re Milligan, 2 Rob. 108; Morrell v. Morrell, 1 Hagg. 51). This section was held to apply to the will of the commander-in-chief actually engaged in a naval operation on board a Queen's ship in a river (Re Austen, 2 Rob. 611). But not to the commander-in-chief of the naval force of Jamaica, living on shore at the official residence (Seymour's case, cited 3 Curt. 530; 2 Curt. 339). Where a naval officer, invalided at a foreign station, was returning home in a steamer, his will was privileged |