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a resumption and continuation of the former, but a distinct act and disposition by way of codicil, it may operate as a republication of the will as to lands, if both the will and codicil are attested, respectively, according to the statute ; but if the will was not so executed and attested, the codicil will not help the defect, although it have the requisites of the
nion, that the due execution of this will could not be come at, in the method wherein the matter was then put; that if this were considered as a specialverdict,they thought it was defectively found as to the point of the legal execution of the will. But that every presumption ought to be made by a jury in favour of such a will, when there was no doubt of the testator's intention, and that they all thought the circumstances sufficient to presume, that the first sheet was in the room; and that the jury ought to have been so directed; but upon a special verdict, nothing could be presumed; therefore, they were all of opinion, that it ought to be tried over again; and if the jury should be of opinion, that it was then in the room, they ought to find for the will generally, and they ought to presume from the circumstances proved that it was then in the room.
It is to be observed, that Lea v. Libb was on a special verdict, and, therefore, no facts could be presumed ; but it does not seem that the case afforded the same ground for presumption, as that of Bond v. Seawell, in which last case there were three witnesses, if any, to the whole will, for the question was not as to the complement of witnesses, but whether the whole will, (the first sheet not having been seen by them,) was covered by the attestation; whereas, in Lea v. Libb, it was necessary to make the will and codicil one instrument, before the attestation could be held sufficient, for to neither, and to no part of either, were there three witnesses ; and if they were distinct instruments, it seems, according to the authorities, that each ought to have been attested by three witnesses, to have been valid within the statute.
statute, for what was bad in its creation, cannot be made good by any thing ex post facto, and the operation of a codicil, where it is a republication, is only to set up the will in its original state and efficacy, making it, as far as it is efficient in itself by the solemnities of its execution and legal compass of expression, reach to the date of the codicil, and embrace intermediate acquisitions (2).
Thus, a testator, devised his lands to trustees and their heirs, in trust for maintaining and providing for the poor scholars of a college in Cambridge, and for other charities, and the will was written with his own hand, but had no witnesses, and afterwards he made a codicil, which was duly executed and subscribed by four witnesses, wherein he recited and took notice of the will. And one of the questions in the case was, whether the codicil was a good publication of the will within the statute of frauds? It was contended on behalf of the devisees, that the codicil, taking notice of the will, and being duly executed, made the will valid in the same manner as if it had been affixed to the will at the execution thereof, for the law would construe it as part of the will, and its being laid in a different place signified nothing. But it was held, that the will was void, for
• Attorney General v. Barnes, 2 Vern. 597. Prec. in Ch. 270.
(2) Vid. Heylin v. Heylin, Cowp. 130.
though there were three subscribing witnesses to the codicil, yet that would not support the will.
This difference between the relation which a co- of the difference
between a writdicil bears to a will, once completed according to ing in continuathe then existing intention, and that which subsists formerly begun,
and a republicabetween the interrupted stages of one entire testa- tion. mentary act, is not difficult to understand as a proposition, though very difficult to explain by example, or apply in practice. Upon this distinction, however, will, it seems, depend the question, whether or not, the first act of testamentary disposition will require to be executed and attested according to the statute.
But whether the subsequent writing be considered as a republication by way of codicil, or as the conclusion of something already begun, as in the case just mentioned of Carleton v. Griffin, it appears quite clear, upon the principles of Habergham v. Vincent, already discussed, and the doctrines of other cases, that such subsequent writing to be effectual to pass land, must be executed and attested as the statute directs, in the case of devises of lands.
It was early decided that a will of lands was good That the fuba where the three witnesses subscribed their names, at witnesses need
not take notice several times, without being present at once toge- that they attestther. And though the witnesses must subscribe the tor's presence.
• Freem. 486. Anon. 2 Cha. Ca. 109. Anon.
will in the presence of the testator, it is not necessary that in such subscription notice should be taken of the fact of its having been done in the presence of the testator, for this is not in terms required by the statute; and whether it be so expressed or not, it must be proved to have been so done, to the jury. An authority on this subject is the case of Hands v. James', where the question on a case reserved on the trial of an ejectment brought by the heir, for the opinion of the court, was, whether it should be left to a jury to determine, whether the witnesses to a will being all dead) did or did not set their names in the presence of the testator, and this merely upon circumstances, without any positive proof; and the court thought that it was a matter fit to be left to a jury: for they said, the witnesses, by the statute of frauds, ought to set their names in the presence of the testator, but it was not required by the statute, that this should be taken notice of in the subscription to the will; and whether inserted or not, it must be proved; and if inserted, it does not conclude, but may be proved contra, and the verdict may find contra. Then if not conclusive when inserted, the òmission would not conclude on the negative side, and therefore, it must be proved by the best proof the nature of the thing was capable of. And they further said, that in case the witnesses were all dead, there could not be any express proof, since at the execution of wills, often
e Com. Rep. 531. et seq.
times none are present but the devisor and witnesses. The proof must, therefore, as in other cases, be circumstantial; and there were sufficient circumstances in the case, Ist, three witnesses had set their names, and it must be intended they did it regularly; 2dly, one witness was an attorney of good character, and may be presumed to understand what ought to be done, rather than the contrary. And the question being a matter of fact, it ought to be left to the jury, like the question whether livery was given in a feoffment, where no livery was indorsed; and whether a deed was executed, where the counterpart only was produced.
To the same effect was the case of Croft v. Paulet', where the words of the attestation were signed, sealed, published, and declared, as and for his last will, in the presence of us, A. B. and C.” And it being objected, that the hands of the witnesses could only stand as to the facts they had subscribed to, and signing in the presence of the testator was not one; the court, on the authority of the case of Hands 0. James, above cited, said it was evidence to be left to a jury, with all the circumstances; and a verdict was given for the will.
The same point was decided in the same way a few years before, by Lord Chief Justice Willes, and the rest of the Court of Common Pleas, in the case
! 2 Strange, 1109.