6 In the construction of this last statute, it has been adjudged that the testator's name, written with his own hand, at the beginning of his case all the debts were paid, and the bankrupt had been dead some time. 14 Ves. 580. See also as to implied or constructive revocations, 3 Mod. 218. Salk. 592. 3 Mod. 203. 2 East, 488. Carth. 81. 4 Burr. 2512. 7 Ves. Jun. 348. Cowp. 812. 4 East, 419. 2 N. R 491. and post," Title by Testament," 489, et seq. Christian. (6) As to what shall be deemed a sufficient compliance with this act, see 1 Fonblanque an Equity, 193. Phil. on Evid. chap. 8. sect. 8. It is observable, that the statute requires that the will shall be in writing, but it should seem it would suffice if in print, and signed by the testator. Semble, 2 M. & S. 286. It next requires, that the will shall be signed by the testator, or some other person in his presence and by his express direction. The first case in which this question was raised was Lemayne v. Stanley, 3 Lev. 1. 1 Eq. Ca. Ab. 403, in which case it was determined, that if the testator write the whole of the will with his own hand, though he does not subscribe his name, but seals and publishes it, and three witnesses subscribe their names in his presence, it is a good will; for his name being written in the will it is a sufficient signing, and the statute does not direct whether it shall be at the top, bottom, &c. But from the case of Right lessee of Carter v. Price, Dougl. 241., it may be inferred that the above decision will apply only to those cases, where the testator appears to have considered such sufficient signing to support his will, and not to those where the testator appears to have intended to sign the instrument in form: and Mr. Christian, in his edition of Blackstone, 2 vol. $77. n. 5., properly observes, that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself; for whatever is written by a stranger after the name of the testator affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined; and see Powell on Devises, 63. In the case of Right v. Price, the will was prepared in five sheets, and a seal affixed to the last, and the form of attestation written upon it, and the will was read over to the testator, who set his mark to the two first sheets, and attempted to set it to the third, but being unable, from the weakness of his hand, be said he could not do it, but that it was his will; and on the following day, being asked if he would sign his will, he said he would, and attempted to sign the two remaining sheets but was not able. Lord Mansfield observed, that "the testator, when he signed the two first sheets, had an intention of signing the others, but was not able; he therefore did not mean the signature of the two first as the signature of the whole will; there never was a signature of the whole, see also 4 Ves. Jun. 197. 9 Ves. 249. And if it appear upon a will of personal estate that something more was intended to be done, and the party was not prevented by sickness or death from signing, this declaration at the begining is not sufficient. 4 Ves. 197. n. 9 Ves. 249. But where a will, written on three sides of a sheet of paper and duly attested, concluded by stating "that the testator had signed his name to the two first sides thereof and his hand and seal to the last," and it appeared he had put his hand and seal to the last only, omitting to sign the two first sides, it was held that the will was well executed, as his first intention was abandoned by the final signature made by him at the time of executing the will. 5 Moore, 484. 2 Bro. & Bing. 650. S. C. So where the testator had executed such a will, but some years afterwards made various interlineations and obliterations therein, but which was neither re-signed, republished, nor reattested, but a fair copy was afterwards made, in which he added one interlineation not affect ing his freehold estate, but the copy was never signed, attested, or published, and the will and copy were found locked up in a draw together, it was held that there was no revocation of the will as it originally stood; the alterations, &c. being merely demonstrative of an intention to execute another never carried into effect. Id. ibid. The testator's making a mark at the foot of his will, if intended as a signature, is sufficient. Freeman Rep. 538. The next doubt that occurred upon this point was, whether the testator sealing his will was not a signing within the statute, and in 2 Stra. 764. lord Raymond is reported to have held that it was; and of the same opinion three of the judges appear to have been, in 3 Lev. 1, on the ground that signum is no more than a mark, and sealing is a sufficient mark that this is his will, but in 1 Wils. 313. such opinion was said to be very strange doctrine; for that if it were so, it would be easy for one person to forge any man's will by only forging the names of any two obscure persons dead, for he would have no occasion to forge the testator's hand. And they said, "if the same thing should come in question again, they should not hold, that sealing a will only was a sufficient signing within the statute." But in 2 Atk. 176. lord Hardwicke seems to have thought, that sealing without signing in the presence of a third witness, the will having been duly signed in the presence of two, would have been sufficient to make it a good will. It was held in a case where the testator was blind, that it is not necessary to read over the will previous to the execution, in the presence of the attesting witnesses. 2 New R. 415. The signing of the testator need not be in the presence of the witnesses; it suffices if he acknowledge his signature to each of them. 3 P. W. 253. 2 Ves. 454. 1 Ves. J. 11. 8 Ves. 504, 1 Ves. & B. 362. Upon the attestation of a will, many questions have also arisen. The first seems to have been whether the witnesses must attest the signing by the testator, and upon this point, the statute not requiring the testator to sign his will in the presence of the witnesses, it has been held sufficient, if the testator acknowledge to the witness that the name is his. 3 P. Wms. 253. 2 Ves. 254. See also 2 P. Wms. 510. Comyn's Rep. 197. 1 Ves. Jun. 11. The next question respecting the attestation was, what shall be construed a signing in the presence of the testator; and upon will, as, " I, John Mills, do make this my last will and testament;" [377] is a sufficient signing, without any name at the bottom; (q) though the other is the safer way. It has also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times. (r) But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument. (s) And, in one case determined by the court of king's bench, (t) the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses: for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasors and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if in such case the testator had charged his real estate with the payment of his debts, the q 3 Lev. 1. 81 P. Wms, 740. t Stra. 1253. r Freem. 486. 2 Ch. Cas. 109. Pr. ch. 185. this point, which first came into consideration in 1 P. Wms. 740., lord Macclesfield held, that "the bare subscribing of a will, by the witnesses in the same room, did not necessarily imply it to be in the testator's presence; for it might be in a corner of the room, in a clandestine fraudulent way, and then it would not be a subscribing by the witness in the testator's presence, merely because in the same room; but that here, it being sworn by the witness, that he subscribed the will at the request of the testatrix and in the same room; this could not be fraudulent, and was therefore well enough." So in the case in 2 Salk. 688. the testator having desired the witnesses to go into another room seven yards distant, to attest it, in which room there was a window broken, through which the testator might have seen, the attestation was held good; for that it was enough that the testator might see the witnesses signing, and that it was not necessary that he should actually see them. See also 3 Salk. 395. And lord Thurlow, in 1 Bro. C. C. 99. relying upon the authority in 2 Salk. 688. inclined to think a will well attested where the testatrix could see the witnesses through the window of her carriage, and of the attorney's office. But the above cases turned upon the circumstance of the testator being in a situation which allowed of his seeing the witnesses sign; if, therefore, he be in a position in which be cannot see the signing, it seems such attestation would not be a compliance with the statute. Carth. 79. Holt's Rep. 222. 1 P. Wms. 239. 2 Show. 288. And in the case in Comyn's R. 531. it was determined that the question, whether present or not, was a fact for the consideration of the jury, upon all the circumstances of the case. See also, Stra. 1109. And if the jury find that the testator was in a situation where he could not see the witnesses, the will is not duly attested, 1 M. & S. 294.; and if the testator were at the time of attestation insensible, though the witnesses signed in his presence, it is not a good attestation. Dougl. 241. It seems also to have been a question, whether the witnesses should not attest the will in the presence of each other? But it was determined, very soon after the statute, that though the witnesses must all see the testator sign, or acknowledge the signing, yet that they may do it at different times. Anon. 2 Ch. Ca. 109. Freem. 486. Cook v. Parson, Pre. Ch. 185. Jones v. Lake, cited 2 Atk. 177. Bond v. Sewell, 3 Burr. R. 1773.; and the acknowledgment by the testator to one of the witnesses, who did not see him sign, is good. See Addy v. Grix, 8 Ves. 504. Ellis v. Smith. 1 Ves. 11. As to the attestation by a marksman, see Harrison v. Harrison, 8 Ves. 185. It is not necessary that the witnesses should in their attestation express that they subscribed their names in the presence of the testator, but whether they did or not so subscribe is a question for the jury. 4 Taunt. 217. Willes Rep. 1. Where there is a power to charge lands for the payment of debts, or for a provision for a wife or younger children, a court of equity will decree a will, though not executed according to the statute, a good execution of the power, Sch. & Lef 60. 1 Duk. 165.; and the defective execution of wills, in exercise of a power, is remedied by the 54 Geo. III. c. 168. Chitty. (7) But see ante 376. n. 6. whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6. which restored both the competency and the credit of such legatees, by declaring void all legacies' given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circum[378] stances, by the court and jury before whom such will shall be contested. And in a much later case (u) the testimony of three witnesses who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination was said to be insufficient." Another inconvenience was found to attend this new method of conveyance by devise; in that creditors by bond and other specialties, 10 which affected the heir provided he had assests by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtors. To obviate which, the statute 3 & 4 W. & M. c. 14. hath provided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void and that such creditors may maintain their actions jointly against both the heir and the devisee. 10 A will of lands, made by the permission and under the control of these statutes, is considered by the courts of law not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject with this difference, that in other conveyances the actual subscrip Tu M. 31 Geo. II. 4 Bur. 1. 430. (8) This extends to devises of lands, and every interest given to the witnesses. But it has been held that a witness may be rendered competent to prove a will by a release, or the receipt of his legacy. 4 Burn Ecc. Law, 97. Pratt, C. J. however was of the opposite opinion. (9) The subscribing witnesses may afterwards be admitted to prove the testator was insane when he executed his will. But in a case where the three witnesses and twelve servants swore to the testator's insanity, they were contradicted by the whole neighbourhood, and the subscribing witnesses were afterwards convicted of perjury. 1 Bl. Rep. 365. Christian. (10) Another wholesome regulation in the case of the death of a trader, subjecting his real estates when not devised to pay debts) to the payment of his debts, has been introduced by the statute 47 Geo. III. sess. 2. c. 74. which enacts, that when any person, being at the time of his death a trader, within the true intent and meaning of the laws relating to bankrupts, shall die seised of or entitled to any estate or interest in lands, tenements, or hereditaments, or other real estate, which he shall not by his last will have charged with or devised, subject to or for the payment of his debts, and which before the passing of this act would have been assets for the payment of his debts due on any specialty in which the heirs were bound, the same shall be assets to be administered in courts of equity for the payment of all the just debts of such person, as well debts due on simple contract as on specialty; and that the heir or heirs at law, devisee or devisecs of such debtors, shall be liable to all the same suits in equity, at the suit of any of the creditors of such debtor, whether creditors by simple contract or by specialty, as they were before the passing of this act, liable to, at the suit of creditors by specialty in which the heirs were bound: provided always, that in the administration of assets by courts of equity, under and by virtue of this act, all creditors by specialty in which the heirs are bound, shall be paid the full amount of the debts due to them before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands. With respect to the above enactments in the 3 & 4 W. & M. c. 14. see the decisions, Bac. Ab. Heir and Ancestor, F. 1 Chitty on Pl. 4th edit. 42. A devisee as such is liable to be sued at law only in an action of debt, and not of covenant. 7 East, 128. A devise to raise a portion for younger children, according to an agreement before marriage, and a devise for payment of debts, are exceptions in this statute; see section 4. but the payment of the debts must be provided for effectually, to bring the case within this exception. 1 Bro. 311. 2 Bro. 614. 7 Ves. J. 323. Chitty. 3 CHAP. 23.] tion of the witnesses is not required by law, (w) though it is prudent for them so to do, in order to assist their memory when living, and to supply their evidence when dead; but in devises of lands such subscription is now absolutely necessary by statute, in order to identify a conveyance, which in And upon In its nature can never be set up till after the death of the devisor. this notion, that a devise affecting lands is merely a species of conveyance, 12 w See pag. 307, 308. y Moor. 255. 11 Mod. 127. x1 P. Wms. 575. 11 Mod. 148. z 1 Ch. Cas. 39. 2 Ch. Cas. 144. a Salk. 238. (11) Lord Mansfield has declared, that this does not turn upon the construction of the statute 32 Henry VIII. c. 1. (as some have supposed) which says, that any person having lands, &c. may devise: for the same rule prevailed before the statute, where lands were devisable by custom. Cowp. 90. It has been determined, that where a testator has devised all his lands, or all the lands which he shall have at the time of his death; if he purchase copyholds after the execution of the will, and surrenders them to the uses declared by his will, they will pass by the will. Cowp. 130. Or if the testator, after making such a devise, purchase freehold lands, and then make a codicil duly executed according to the statute, though no notice is taken of the after-purchased lands; yet if the codicil is annexed to, or confirms the will, or, as it seems, has a reference to it, this amounts to a republication of the will, and the after-purchased lands will pass under the general devise. Cowp. 158. Com. 383. 4 Bro. 2. 7 Ves. Jun. 98. But if the codicil refer expressly to the lands only devised by the will, then the after-purchased lands will not pass under the general devise of the will. 7 T. R. 482. This also is a general rule, that if a man is seised of an estate in fee, and disposes of it by will, and afterwards make a conveyance of the feesimple, and take back a new estate, this new estate will not pass by the will, for it is not the A man possessed of estates in estate which the testator had at the time of publishing his will." fee, before marriage, in order to make certain settlements upon his wife and children, entered into an agreement, in which he reserved to himself the reversion in fee, which reversion he afterwards disposed of by his will; and after the making of his will, he executed proper conveyances for the performance of the marriage-articles, in which, after the limitations to his wife and children, he took back the reversion in fee; this was held by lord Loughborough to be a revocation of the will, and his decision was afterwards confirmed by the house of lords in the case of Brydges v. Duchess of Chandos. 2 Ves. Jun. 417. A similar decision was also made in the courts of common pleas and king's bench, in the case of Goodtitle v. Otway, 7 T. R. 399. In that case lord Kenyon lays down generally, that it is now indisputably fixed, that where the whole estate is conveyed to uses, though the ultimate reversion comes back to the grantor by the same instrument, it operates as a revocation of a prior. will." 7 T. R. 419. Equity admits no revocation which would not upon legal grounds be a revocation at law. There are three cases which are exceptions to this general rule, viz. mortgages, which are revocations pro tanto only, a conveyance for payment of debts, or a conveyance merely for the purpose of a partition of an estate. In the two first a court of equity decrees the redemption, or the surplus, to that person who would have been entitled if such mortgage or conveyance had not Christian. existed, i. c. the devisee. 2 Ves. Jun. 428. If an estate is modified in a different mauner, as where a new interest is taken, from that in which it stood at the making of the will, it is a revocation. 3 Atk. 741. And equitable, being governed by the same rules as legal estates, if any new use be limited, or any alteration of the trusts upon which they were settled take place, a devise of them will be revoked. 2 Atk. 579. If A. having devised lands to B., afterwards convey to him a less estate, as for years, to commence from the death of the devisor, this is a revocation of the devise to B. Cro. Jac. 49.; but a grant only of an estate for years, is not a revocation of a devise in fee. 2 Atk. 72. Or if A. after devising in fee, mortgage his lands or convey them in fee to trustees to pay debts, though this is a revocation at law, it is not so in equity, except pro tanto. 1 Vern. $29. 342. See also Chitty. 3 Ves. Jun. 654. (12) See most of the cases collected, 1 Saund. 277. n. 4.; and see the principle, Gilb. Ú. & T. 116, 7. 1 Co. 105, 6. 6 T. R.518. If an estate is given to A. and his heirs, or to A. and the heirs of his body, or any interest whatever to A., and A. dies before the testator, the devise is lapsed and void, and the heirs of A. can claim no benefit from the devise. A severe instance of this rule occurred not long ago in Ireland. A father devised his estate to his eldest son and the heirs of his body, and upon failure of his issue to his second son in like manner in tail; the eldest We have now considered the several species of common assurances, whereby a title to lands and tenements may be transferred and conveyed from one man to another. But, before we conclude this head, it may not be improper to take notice of a few general rules and maxims, which have been laid down by courts of justice, for the construction and exposition of them all. 13 These are, 1. That the construction be favourable, and as near the minds and apparent intents of the parties, as the rules of law will admit. (b) For the maxims of law are, that " verba intentioni debent inservire ;" and "benigne "interpretamur chartas propter simplicitatem laicorum." And therefore the construction must also be reasonable, and agreeable to common understanding. (c) 2. That quoties in verbis nulla est ambiguntas ibi nulla expositio contra verba fienda est: (d) but that, where the intention is clear, too minute a stress be not laid on the strict and precise signification of words; nam qui haeret in litera, haeret in cortice. Therefore, by a grant of a remainder a reversion may well pass, and e converso. (e) And another maxim of law is, that "mala grammatica non vitiat chartam ;" neither false English nor bad Latin will destroy a deed. (ƒ) Which perhaps a classical critic may think to be no unnecessary caution. 3. That the construction be made upon the entire deed, and not merely upon disjointed parts of it. "Nam ex antecedentibus et consequentibus fit optima interpretatio." (g) And therefore that every part of it be [380] (if possible) made to take effect: and no word but what may operate in some shape or other. (h) "Nam verba debent intelligi cum effectu, ut res magis valeat quem pereat." (i) 4. That the deed be taken most strongly against him that is the agent or contractor, and in favour of the other party. "Verba fortius accipiuntur "contra proferentem." As, if a tenant in fee-simple grants to any one an estate for life, generally, it shall be construed an estate for the life of the grantee. (j) For the principle of self-preservation will make men sufficiently careful, not to prejudice their own interest by the too extensive meaning of their words: and hereby all manner of deceit in any grant is ́avoided; for men would always affect ambiguous and intricate expressions, provided they were afterwards at liberty to put their own construction upon them. But here a distinction must be taken between an indenture and a deed-poll for the words of an indenture, executed by both parties, are to be considered as the words of them both; for, though delivered as the b And. 60. c 1 Bulstr. 175. Hob. 304. d 2 Saund. 157. son died before the father, leaving several children; and the father, supposing that the eldest of them would take under the devise, made no alteration in his will: the consequence was, that the devise was lapsed and void, and the second son was entitled by the will to an estate-tail, in exclusion of the children of the eldest brother, the first objects of the father's bounty and regard. The court of king's bench in Ireland decided in favour of the grandson; but that decision was reversed by the king's bench and house of lords here, the question being too clear to admit a doubt. White v. White, 6 T. R. 518. 1 Bro. 219. Doug. 330. A devisee is not compellable to take the estate devised to him, and a devisee in fee may by deed, without matter of record, disclaim the estate devised. 3 B. & A. 31. Chitty. (13) As to the rules of construing contracts at law and in equity, see 3 Chitty's Com. L. 106 to 118. In Watson v. Foxon, 2 East, 39. Ld. Kenyon said, "whether if the question were now to be taken up again de novo, the strict rules of construction applicable to deeds were not better to be required in the case of wills, I have always had my doubts. It is now, however, too late to consider that question, for ever since the statute of wills enabled persons to dispose of their property in that manner, the endeavour has always been to give effect to the intention of the festator, so far as it is to be collected from the instrument itself. Chitty. |