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will, and sends it to counsel to be advised of the legality of it, this is no will, unless it had a publication after he received it back from his counsel: but 2d, that if after the will came from the counsel with alterations made by him, the party put his seal to it, or subscribed his name, or wrote upon it, 'this is my will,' though there were no witnesses to it, yet this was a good publication, because by any of those expressions, the testator declared his intent that it should be his will". In Peate v. Ougley, Sir John Hollis mentioned a case determined by Lord Shaftesbury, before the 29 Car. 2. in which, though the testator wrote his will with his own hand, and also these words 'signed, sealed, and published in the presence of,' and no witnesses had subscribed it, it was held a sufficient publication. And in the principal case, because these words, signed, sealed, and published in the presence of, were written at the top of the will for want of room below, in the testator's own hand, and then the names of the three witnesses were subscribed, though one witness (the other two witnesses being dead) deposed, that himself and the other two witnesses were called up in the night, and sent for to the testator's bed-chamber, who produced a paper folded up, and desired him and the others to set their hands as witnesses to it, which they all three did in his
presence, but without seeing any of the writing,
a Bartlett v. Ransden, et al. Trin. 15. Car. 2. B. R. Vin. Abr. tit. Dev. (N.2.) pl. 16.
1 Vin. Abr. tit. Dev. (N. 7.) . 12.
or being told by the testator it was his will, or what it was, but that he believed it to be the same paper, because his name was there, and the names of the other witnesses, and he never witnessed any other paper for the testator ; this was held to be a sufficient publication of the will, after the statute of 29 Car. 2. But it should be remembered, that Lord Hardwicke, in the case of Ross 0. Ewer, mentioned a case of a Mr. Windham in the court K.. B. which was a trial at bar, upon the will of his uncle; wherein the only question was, whether the testator published it; there was no doubt of his having executed it in the presence of three witnesses, , or of their having attested it in his presence; which shewed, his Lordship said, that publication is, in the eye of the law, an essential part of the execution of a will, and not a mere matter of form.
The point therefore seems subject to some doubt, whether publication is to be considered as a mere vague term, expressing generally the act of authenticating and announcing the veritable will of a testator, but depending as to the mode by which it is to be effectuated, on the particular ceremonies and solemnities prescribed by the legislature, or imposes a specific obligation upon the testator beyond the execution and attestation of the will according to the statute of frauds. If any positive declaration by the testator, that it is his will, be necessary to consti
e 3 Atk, 161.
tute a sufficient publication since the statute, it does not seem that the mere acknowledgment of the signing can operate as an equivalent; for the acknowledgment of the signing, unless the testator at the same time acknowledge his will, cannot be more extensive in effect than the act of signing in the presence of the witnesses. Upon the whole, however, we are to consider that, great as is the weight of Lord Hardwicke's opinion, it was delivered on this point in Ross v. Ewer, gratuitously and extrajudicially; whereas the cases of Peate v. Qugley, Trimmer v. Jackson, Stonehouse v. Evelyn, and others, which have been cited for the contrary doctrine, are direct authorities.
Wills interrupted and resumed.
A will, though IT is established by the agreement of all the
intervals these acts are separated ;
ment, though with many pauses and resumptions.
Thus', where an illiterate person made and signed his will, in which there was a devise of lands, and at a subsequent period added more to it on the same sheet of paper, and declared that he did not thereby mean to disannul any part of his former devise and disposition, and signed it, and then took the sheet of paper in his hand, and declared it to be his last will and testament in the presence of three witnesses, and desired the witnesses to attest it, which they did in his presence, this was held to be one entire will, though made at different times, and to be attested agreeably to the statute of frauds; or, in other words, the additional writing was held to be part of one entire will, and not a codicil, and the execution and attestation to be an original publication, and not a re-publication.
tion of a will
But where the will was written on different pieces of the execuof paper,
it was holden, that the witnesses ought to written on difsee all the pieces of paper, or the will was not ferent pieces of
paper. properly attested. Thus, in ejectment', where the special verdict set forth, that J. D. made his will in 1670, with two witnesses who subscribed their names in his presence; and in 1679, made a codicil, and thereby confirmed his will in what was not altered, and inserted some new equests, and there were two witnesses to it, one of whom had witnessed
• Carleton v. Griffin, 1 Burr. 549. Carth. 37. arguendo, and, a6 it seems, agreed to by Dolben, J.
» 2 Mod. 263.
the will, and the other was a new one, the only point was, whether these made together three witnesses to the will, to satisfy the statute of frauds; but the court decided against the devise, because the third witness was 'not a witness to the first will. There was no entire instrument attested by three witnesses (1). And if the additional writing be not
(1) The reader should compare this case of Lea v. Libb, with Bond v. Seawell, 3 Burr. 1773. Blackst. 407. 422, 454, in which latter case it was proved, that C. made his will, consisting of two sheets of paper, all of his own hand-writing, and signed his name at the bottom of each page; and that he also made a codicil of his own hand-writing upon one single sheet, and then called in H. and shewed him both the shoets of his will, and his signature to every page thereof, and told him that that was his will, and then he shewed H. the codicil, and desired him to attest both the will and codicil ; which he did in the presence of the testator, and then went out of the room.
V. and L. came in immediately afterwards, and the testator shewed them the codicil, and the last sheet of his will, and sealed both before them. C. then took each of thein up severally, as his act and deed for the purposes therein mentioned. Then the witnesses attested the same in the testator's presence, but never saw the first sheet of the will; nor was that sheet produced to them ; nor was the same nor any other paper upon the table; both the sheets of the will were found with the codicil in the testator's bureau, after his death; all wrapped up in one piece of paper ; but the two sheets of the will were not pinned together : and the question upon these facts was, whether this will was duly executed according to the statute of frauds ?
After three several arguments before the court of King's Bench, and one argument before all the judges in the Exchequer Chamber, Lord Mansfield delivered the judgment. His Lordship said, that the question made at the trial, and submitted by the case, as it stood, turned upon the solemnity of the execution, and they were of opi.