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the bar, they had been able to find, the party offering it for probate must propound the papers for proof in solemn form.16

7. Both the earlier and present English statute, and most of those in force in this country, allow the testator's signature to be made by some other person. Under this clause of the statute, it has been held, this act may be done by one of the witnesses.17 And it will not render the execution defective, where the person executing the will on behalf of the testator, by mistake, signs his own name instead of the testator's.18 And where the person directed by the testator to sign for him, did it, by writing at the foot: "This will was read and approved by C. F. B., by C. C., in the presence of," &c., and then followed the signatures of the witnesses, it was held sufficient.19

8. Only one signature is required, even when the will consists of more than one sheet, or piece of paper, where that is affixed with intent thereby to sign the whole instrument.20 In a very late case,21 where the matter is fully considered, by one of

16 Jenkyns in re, 9 Jur. N. s. 311. But on solemn argument and consideration, the execution by stamp was held sufficient, being equivalent to making a mark. Jenkyns v. Gaisford, 9 Jur. N. s. 630 (1863).

"Re Bailey, 1 Curteis, 914; Smith v. Harris, 1 Rob. 262. The New York statute requires witnesses to "sign" their names, but a witness who has written the testator's name, at his request, is required to "write his own name as a witness to the will," and it was held, that "the variance in the phraseology was not unimportant, and while the other witnesses might sign by mark, other persons writing their names, and even guiding their hands, while making their mark, it was indispensable that the witness, writing the name of the testator, should write his own name, as a witness." Meehan v. Rourke, 2 Bradf. Sur. Rep. 385. The testator's subscription may be written by another person in his presence and by his express direction, under the New York statute. Robins v. Coryell, 27 Barb. 556.

18 Re Clark, 2 Curteis, 329.

19

1 Jarman, Eng. ed. 1861, 74; Re Blair, 6 No. Cas. 528.

20 Winsor v. Pratt, 5 J. B. Moore, 484; s. c. 2 Br. & B. 650.

" Marsh v. Marsh, 6 Jur. N. s. 380, before Sir C. Cresswell, in the Court of

the most accomplished and learned judges of modern times, in regard to all matters affecting the law of the probate of wills, it was held, that when a will is found written on several sheets of paper, and the last only is signed and attested, prima facie the presumption is, that they were all in the room, and formed part of the will at the time of execution; that although some of the provisions in the third part of the will were not consistent with those in the first, yet as any one or two of the parts, without the rest, would be manifestly imperfect, and the reasons for supposing they were all attached together, at the time of execution, were so much stronger than any contrary presumption arising out of the inconsistency of some parts, they were all entitled to probate as the will of the testator.

Probate, in 1860. In the very late case of the Goods of West, 9 Jur. N. s. 1158 (1863), where there was not sufficient room remaining at the bottom of the fourth side of a sheet of letter paper upon which the will was written, for the signature, the attestation clause and the signatures of the testator and of the witnesses were upon a separate half sheet of paper, which was attached by three wafers, at the bottom of the second side or page of the will. One of the attesting witnesses had died, and the other could give no account of the state of the papers, at the time the testatrix signed her name. The counsel, who appeared for the probate, cited the cases of the Goods of Gausden, 8 Jur. N. s. 180; Cook v. Lambert, 9 Jur. N. s. 258. Sir J. P. Wilde, said: "In the cases cited, there was satisfactory evidence before the court, that the papers were in the same state at the death of the testator, as when the witnesses signed them. In the one before me, such evidence is entirely wanting. I must, therefore, reject the motion."

No such presumption of a codicil having reference to a prior will, there being two, attaches. In the case of Marsh v. Marsh, supra, the will of 1851, had been revoked by that of 1856, and the codicil of 1858, was found attached by tape to one corner of the will of 1851. It was held, that, in order that a will which has been revoked should be revived by a codicil, the latter must show an intention to do so, and that that intention must be extracted from the contents of the codicil itself, and cannot be established by an act of the testator dehors the instrument. Ib. The last point is based upon the requirements of the statute of Victoria, that a codicil to have the effect to revive a will, once revoked, either in whole or in part, must be executed in the manner prescribed by that statute, "and showing an intention to revive the same." 1 Vict. ch. 26, § 22.

9. By the statute of frauds, which merely required that the devise should be signed by the devisor, it was held not important in what portion of the instrument the name appeared.22 The present English statute requires the name of the testator to be signed at the foot or end of the instrument. But under the former statute, it was necessary that the name of the devisor, in whatever part of the will it appeared, should either have been written, or adopted, by him, as the final act of execution.23 And where the testator declares the paper to be his will, without signing his name at the end, it will be presumed he thereby intends to adopt his name, written in any other portion of the will, as the final act of signing.24

10. And although this rule has been more commonly applied to holograph wills, where the whole instrument being in the handwriting of the testator, there would seem more propriety in adopting the implication, that by writing his name, in any part of the instrument, with the purpose of signing, he thereby gave it the same degree of authenticity, as if he had made a formal signature under the testatum clause; yet the rule has been

22 Lemaine v. Stanley, 3 Lev. 1; s. c. 1 Freem 538; Adams v. Field, 21 Vt. 256, where the subject is very thoroughly examined, both by counsel and the court, and the opinion of the court by Bennett, J., contains a very satisfactory analysis of the law upon this question.

23

Right v. Price, Doug. 241; Griffin v. Griffin, 4 Vesey, 197 n.; Coles v. Trecothick, 9 Vesey, 249; Walker v. Walker, 1 Mer. 503.

* 1 Jarman, ed. 1861, 74. The case of Ellis v. Smith, 1 Ves. Jr. 11, is often cited, as if it were an authority for holding, that declaring a paper to be the will of the testator, in the presence of the witnesses, was equivalent to signing, and would dispense with that act altogether. But no such point is there decided, and that portion of the case is intended to go no further, than that, having signed the paper, it is not requisite that he should repeat that act in the presence of the witnesses, it being sufficient if he declare it to be his will in the presence of the witnesses, and require them to authenticate it as such. Adams v. Field, supra, and cases there referred to.

sometimes extended to cases where the instrument was drawn up by another hand, under the testator's direction.25

11. In a late case, in the State of Virginia,26 there is an apparent effort, on the part of the court, to rescue the law, in regard

Sarah Miles's Will, 4 Dana, 1. We have not noticed any English case going this length, in regard to the signing required by the statute of frauds. Martin v. Watton, 1 Lee, 130, holds a will written by another, beginning with the name of the testatrix, and prepared for signature, and read over and approved by the testatrix, but which she had not strength to sign, but which was published and acknowledged, by her, as her will, in the presence of two witnesses, who attested it, as such, sufficient to pass personal property. But this was before the statute of 1 Vict. ch. 26, and while no testamentary act in writing was required to pass personal property, so that this case did not determine that the paper was signed, within the statute of frauds. But upon principle, we see no good reason why, if the testator may sign by the hand of another, and with a fictitious, or mistaken name, or mark, he should not be allowed to adopt the writing of his name, by another, as well as when written by himself, not for the purpose of authenticating the instrument, unless the express terms of the statute, requiring, that where the testator adopts the act of another, in regard to the signature of the devise, it shall be done "in his presence and by his express direction," is to be regarded as an obstacle. It is well known, that in regard to other sections of the statute of frauds, requiring a memorandum in writing, signed by the party to be charged, a printed bill, containing the names of the parties, has been held sufficient. Saunderson v. Jackson, 2 B. & P. 238 ; Schneider v. Norris, 2 M. & S. 286; Johnson v. Dodgson, 2 M. & W. 653. But it was very clearly held, that where the contract appeared imperfect, containing at the close the usual testatum clause, it could not be regarded as a perfected memorandum under the statute. Hubert v. Treherne, 3 Man. & G. 742.

And in Pennsylvania, where the statute in force required the will to be signed at the end, an instrument signed by the maker for his will, but containing after the signature an explanation of the reasons for making his will, but not signed by him, was held invalid. Hays v. Harden, 6 Barr. 409. And in Alabama, Armstrong v. Armstrong, 29 Ala. 538, it was held, that where the name of the testator was written in the beginning of the will, not by himself, but in his presence and by his direction, and acknowledged to the attesting witnesses, at the time they are called upon to attest the execution, it is as effectual as if written by his own hand.

"Waller v. Waller, 1 Grattan, 454.

to signing wills of real estate, from the apparent inconsistency into which it had fallen, by the English and American decisions, under the statute of frauds. By statute, in that state, a will written wholly by the testator, and signed by him, is good to pass real estate, without being executed before witnesses. It had been repeatedly decided there, that the signing of a will might be by the insertion of the testator's name, in any portion of the instrument, if done by the testator, as the final act of execution, or with the declared purpose of giving final authenticity to the will.27 But in most of the cases in that state, and

Bailey v. Teackle, Wythe, 173; Selden v. Coalter, 2 Va. Cas. 553. The ease of Waller v. Waller was very thoroughly discussed at the bar, and seems to have been very carefully considered by the court, and the result to which the court came in regard to holograph wills, where there could in the nature of things, be no final act of execution until the signing; and especially, as in these cases, where it appeared, by the use of the usual concluding formulas, that the testator did intend, both to sign and publish the instrument before witnesses, the paper would, upon its face, appear to be incomplete; there could be no propriety in regarding it as a valid execution of a will. We think there can be no reasonable ground to question the soundness of this view. We regard the entire course of decisions, upon this point, from the case of Lemaine v. Stanley, supra, which was almost contemporaneous with the statute, until the statute, 1 Vict. ch. 26, as having been, as it has often been characterized, a studied evasion of the just requirements of the former statute. All the cases where the testator has failed to sign the will in the usual manner, at the foot or end of it, have been cases where the omission occurred accidentally, and not where the testator, had his attention been called to the subject, would not have signed. And the courts have exercised their ingenuity to meet these accidental cases of hardship, and at the same time preserve the fair integrity of the requirements of the statute. But in doing so, they have virtually said, signing is of no importance, where the will is a holograph, or the testator is shown to have known of its contents, and desired the witnesses to authenticate it as his will. But as the statute required "signing," the courts could not dispense with it, and must, therefore, find the thing most nearly resembling it, and call that the same. In Lemaine v. Stanley, it is declared that sealing is signing, and also that the writing the name at the beginning is signing. We think sealing comes nearer to signing than the use of the name at the beginning; for sealing is a final act

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