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time of the attestation as the particular juncture to which the qualification related, they have made the interest of the individual a sacrifice to the will

PART XV.

Time and Manner of inaking the Attestation.

witnesses whe

UPON a feigned issue, tried in the Court of That it is enough · Common Pleas, the question was, whether the will might see the

was made according to the statute of frauds ? for the ther he did actestator had desired the witnesses to go into another or not.

tually see them room, seven yards distant, to attest it; in which there was a window broken, through which the tes: tator might see them. The Court said, the statute required attesting in his presence, to prevent obtruding another will in the place of the true one. It is enough if the testator might see, it is not necessary that he should actually see them signing; for, at that rate, if a man should turn his back, or look off, it would vitiate the will. Here the signing was in the view of the testator; he might have seen it, and that is enough. And they compared it to the case, where the testator lay sick in bed, with the eurtain drawno, while the witnesses subscribed,

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Shires v. Glascock, 2 Salk. 688.

On a trial at bar, where the question was, whether the witnesses to a will had pursued the directions of the statute of frauds, in the manner of subscribing their names, it was resolved, that where the testator lay in a bed in one room, and the witnesses went through a small passage into another room, and there set their names at a table in the middle of the room, and opposite to the door, and both that, and the door of the room where the testator lay, were open, so that he might see them subscribe their names if he would, though there was no positive proof that he did see them subscribe their names, there was a sufficient subscribing within the meaning of the statute; because, it was possible that the testator might see them subscribe; and the court held, that if the witnesses subscribed their names in the same room where the testator lay, though the curtains of the bed were drawn close, it was a good subscribing within this statute (1)

Dary and Nicholas v. Smith, 3 Salk. 395.

(1) The notion of the civil lawyers was more rigid and cautious in this respect. The attestation ought to be in conspectu testatoris; and further, non est satis, ut quidam tradiderunt, testes oculatos esse, si testatorem ipsi non videant, forte velo, aut cortina interjecta conspectum adimente, licet vocem ejus audiant : sed necesse est ut faciem ejus videant, ne qua fraus fat, alio forte subornato, qui vocem testatoris imitando simulet. Vinn. Com. 1. lib. 2. tit. 10. , And Vinnius was of opinion, that a blind man (de quo nihil traditum est) could not be a witness because he could not satisfy the law, which required that the testator should be seen by the witnesses, and that

A similar doctrine was maintained by Lord Thurlow in the court of Chancery, in a case circumstanced as follows: Honora Jenkins having a power, though covert, to make a writing in the nature of a will, ordered the will to be prepared, and went to her attorney's office to execute it. Being asthmatical, and the office very hot, she retired to her carriage to execute the will, the witnesses attending her; after having seen the execution they returned into the office to attest it; and the carriage was put back to the window of the office, through which, it was sworn by a person in the carriage, that the testatrix might see what passed. Immediately after the attestation, the witness took the will to her, which she folded up and put into her pocket. The Lord Chancellor inclined very strongly to think the will well executed, and the above-mentioned case of Shires and Glascock, 2 Salk. 688. relied upon as an authority. Mr. Arden pressed for an issue, but finding the Lord Chancellor's opinion very decisive against him, he declined it.

was

Casson v. Dade, 1 Bro. C. C. 99.

they should be able to recognize the testator's signature. The English law, however, is clearly otherwise in this respect, as an acknowledgment of the signing has been held sufficient, as appears above; and it has been held, that it is not necessary to the execution by a blind man that it should be read over to him in the presence of the subscribing witnesses. Longchamp v. Goodfellow. 2N. R. 415.

In Broderick' o. Broderick, where the testator devised lands to J. S. and his heirs, and duly subscribed his will in the presence of three witnesses, who went down stairs into another room, and attested the will there, which was out of the presence of the testator, the relief afforded to the heir against a release obtained from him by the devisee, under a false assurance that the will was sufficiently executed, was a necessary consequence of the opinion of the Chancellor', that the devise, was void for want of an execution conformable to the statute. And it was, in vain contended for the devisee, that the will, as to the devisor, was executed, and that the form of the witnesses subscribing in the presence of the testator, was only prescribed by the statute of frauds, to prevent a rash disinherison of the heir; but that since, the execution of the will was fully proyed, though the circumstances required by the statute had not been observed, yet it was the plain intention of the testator, that the devisee should have the estate ; and that the devisee having the legal estate, it would be hard to take it from him in equity, and by those means to dispose of the estate against the intent of the testator, from the devisee, for want of a ceremony, when the end of that ceremony was answered, by its being made to appear, undoubtedly, that the testator did sign and seal this will.

Nor will the subscription of the witnesses in the

IP. Wms. 239.

e Lord Harcourt.

same room always satisfy the statute, or necessarily imply it to be in the testator's presence, for, as was observed by Lord Chancellor Macclesfield, in Longford v. Eyre', it might be done in a corner of the room in a clandestine and fraudulent way, and then it would not be a subscribing in the testator's presence. But his Lordship further said, that as it was sworn by the witness, that he subscribed the will at the testator's request, and in the same room, that could not be fraudulent, and was well enough.

Thus, therefore, the law upon this subject seems sufficiently settled upon this distinction, that if the attesting witnesses subscribe the will in such a situation with respect to the testator, as that it was not possible for him to have seen the act done by them, such will is void as to real estate for the defect of solemnity in its execution; but if their situation was such as to afford the testator the opportunity of seeing them subscribe, if he chose, their attestation under such circumstances will be good and valid, although in point of fact they were not seen by the testator in the very act of subscribing their names.

The mere corporal presence, however, of the tes- It is not enough

that the testator tator, unless his mind and faculties also are present, is corporally

present, he must will not satisfy the statute on this point; for there possess his facul

ties so as to give must be a mental knowledge of the fact, so that, as him a mental

knowledge oftk a subscription clandestinely made in a corner of the fact.

fi P. Wms. 740.

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