adopted, the spelling being so different in fact as to constitute a different name, is very material in determining the fact.56

29. It was decided, in a very recent case in Pennsylvania,5 that where the testator's will was drawn up in his presence, and according to his directions, and he executed' the same, without it being read to or by him, that it was a valid will. But we should have hesitated in such a case, where there was proof that the testator did not know the contents of the paper. There seems no ground of presumption of his knowledge in such a case. It is in fact nothing more than the attestation by the witnesses of the testator's instructions.

30. It does not seem to be requisite to the validity of a will, according to the recent English decisions, that the testator should sign it by the same name by which he is described in the will. Thus, where A. put his mark to a testamentary paper, wherein he was described throughout as B., the court being satisfied that A. executed the same by mark in due form, animo testandi, admitted it to probate as the will of A.58

31. In a late English case the testatrix signed her name before the witnesses, below where they signed, but at the same time; and subsequently, executed a codicil in a similar manner; and it was held no objection to the validity of the instruments.59

SECTION IV.

THE MODE OF SUBSCRIPTION AND ATTESTATION BY THE WITNESSES.

1. Witness may sign by mark, by initials, and by fictitious name, but not by seal. 2. His hand may be guided by another, if he cannot write.

56 McGuire v. Kerr, 2 Bradf. Sur. Rep. 244, 255.

57 Hess' Appeal, 43 Penn. St. 73.

58 Douce in re, 2 Swab. & Trist. 593; s. c. 8 Jur. N. s. 723.

50 Hoskins in re, 32 L. J. Prob. 158.

3. But according to the English cases, he cannot adopt a signature written by another, or by himself at another time.

n. 8. The American courts do not adopt this refinement. It seems unreasonable. 4. The English courts require he should write his name.

5. Or at the least do some present act of attestation. Sir C. Creswell.

6 and n. 14. Need not sign any attestation clause. Not material on what part of will.

7. Lord Campbell's commentary on the cases.

8. Consideration of the import of the term "subscribe" in the statute.

9. The subject elucidated by numerous illustrations.

10. There may be danger of fraud. The danger from rejecting proof, is greater.

n. 13. In the execution of powers, the requirements of the power must appear on the face of the will.

11. The presumption of the due execution of a will is greatly favored by courts. 12. But the will must appear regular on its face, or if lost, such fact must be proved. 13. The attestation clause often affords great evidence of due execution.

14. This clause aids the recollection of the witnesses, and gives confidence to the

court.

15. But any omission in this clause may be supplied by proof aliunde.

16. Such an omission creates more doubt than if there had been no attempt to state

particulars.

17. To become a witness one must do some act animo testandi.

18. But it is not essential that this be done without assistance.

19. In the American states witnesses may attest by mark, or the name be written by another.

20. Where the witness has deceased, proof of his handwriting, is proof of his attestation in due form.

21. Late English cases hold the witnesses must sign or make mark on will.

22. The entire omission of attestation clause does not defeat presumption of due execution.

§ 19. 1. There seems to be no difference, in legal significance, between the word "sign," which, in the statute, is applied to the devisor, and the word "subscribe," which is applied to the witHence it has been held the witnesses may subscribe by mark, or by initials,2 or by a fictitious name, if used without

nesses.

3

1 Harrison v. Harrison, 8 Vesey, 185; Addy v. Grix, id. 504; Re Amiss, 2

VOL. I.

'Re Christian, 2 Rob. 110, 7 Notes Cas. 265.

Re Olliver, 2 Spinks, 57.

20

the purpose of personating another. But putting their seals to the will is not sufficient.5

2. If the witness cannot write, his hand may be guided by another. But it was doubted, if the witness could write, whether it was sufficient for him to touch the top of the pen while another writes his name."

3. But as the statute requires the witnesses to subscribe the instrument in the presence of the devisor, their subscription cannot be by a signature made by some other person, or by themselves at some other time, and adopted for the occasion, as we have seen may be done in the case of testators.8

4. Nor can the witness, in case of reëxecution, adopt his

Rob. 116; 7 Notes Cas. 274; Re Ashmore, 3 Curtis, 756. Marksmen may be witnesses to a will, Ford v. Ford, 7 Humph. 92; Pridgen v. Pridgen, 13 Ired. 259.

Pryor v. Pryor, 29 L. J. Probate, 114. In a very late case before the Court of Probate. In re Sterling, 9 Jur. 1205, Nov. 1863, it was held by Wilde, J., that where the testator signed his name in the presence of two witnesses, one of whom attested the deceased's signature in the usual way, but the other wrote the words, "Servant to Mr. Sperling," the testator, without writing his own name, it was held, that as the witness intended by what he wrote, to identify himself, as being present, and attesting, the requirements of the statute were satisfied..

5 4 Re Byrd, 3 Curteis, 117.

• Harrison v. Elvin, 3 Q. B. 117; Re Frith, 4 Jur. N. s. 288.

Re Kilcher, 6 Notes Cas. 15.

Moore v. King, 3 Curteis, 243; 1 Jarman, ed. 1861, 77, and cases cited in notes. Witness' hand may be held and guided by another, but each witness must write his own name, and one cannot write the name of another, under the impression that the other cannot write well. Ex parte Leroy, 3 Bradf. Sur. Rep. 227. But the attestation clause in a will is not indispensable. Frye's Will, 2 R. I. 88. Witness' name may be written by another at his request. Jesse v. Parker, 6 Grattan, 57; Upchurch v. Upchurch, 16 B. Mon. 102. See also Horton v. Johnson, 18 Ga. 396. So the witness may adopt a name already written, as Pollock v. Glassell, 2 Gratt. 439. This seems to us alto

well as to rewrite it.

gether more reasonable than some of the nice refinements of the English courts upon this point. See post, § 20, pl. 5, n. 6; post, pl. 19.

former attestation, by passing over the marks with a dry pen.9 Nor will adding to the former subscription the place of residence of the witness, make a proper reattesting.10 The witness must resubscribe the instrument in a manner which will be apparent upon the paper.11

5. And in a recent case,12 under the present English statute, where the testator had acknowledged his signature in the presence of the first witness, who had subscribed the paper, as a witness, and subsequently, this witness and another being pressent, he acknowledged his signature to both, and the second witness then subscribed as a witness, and the first witness, seeing that one of the letters in his former signature was incomplete, crossed it, it was held, by Sir Cresswell Cresswell, that, although the deceased acknowledged his signature in the presence of the witnesses, present at the same time, such witnesses did not attest and subscribe the will in the presence of the testator. The learned judge said: "It was not contended, that the witness must subscribe his name, it was admitted that a subscription by initials, by a cross, or a mark of any other shape, would suffice, if placed there as a subscription animo testandi." It was claimed, in the present case, that the witness crossed the F in his name, "Frederick," to complete his former

9

Hayne v. Scriben, 1 Rob. 772; 1 Jarman, ed. 1861, 77, and cases cited in

notes.

10 Re Trevanion, 2 Rob. 311.

" 1 Jarman, ed: 1861, 77.

"Charlton v. Hindmarch, 5 Jur. N. s. 581. It seems to be implied, from the language of the present English statute, requiring the witnesses to be "present at the same time," that they shall witness the execution of the will in the presence of each other. But that was not required under the statute of frauds. Green v. Crain, 12 Grattan, 252; Hoffman v. Hoffman, 26 Ala. 535. And it is now settled, that, under the present English statute, it is not requisite that the witnesses sign their names in the presence of each other. 1 Wms. Exrs. 79; 3 Curt. 659, Sir H. J. Fust; Faulds v. Jackson, 6 Notes Cas. Supp. 1. But see Casement v. Fulton, 5 Moore, P. C. C. 130, contra.

subscription, and not as a mark of his present act, and it was not, therefore, to be treated as a new subscription.

6. It does not seem to be regarded as important, that the witnesses should subscribe any formal clause of attestation,13

13 The testatum clause, as it has been called, which immediately precedes the signatures of the witnesses, is by no means indispensable, and, under the statute of frauds, it does not seem to have been regarded as any thing more than prima facie evidence of what the witnesses are to be taken to have witnessed. For where this clause contained all the other requisites under the statute, except that the witnesses signed in the presence of the testator, it was early, and has been repeatedly, held, that fact might be supplied. Hands v. James, Com. 531; Brice v. Smith, Willes, 1; Croft v. Pawlet, 2 Strange, 1109; Rancliff v. Parkyns, 6 Dow, 202; Doe d. v. Davies, 9 Q. B. 648. And these cases show, that the facts necessary to the due execution of the will may be inferred by the jury, from circumstances, or even from the face of the will. See also, Hitch v. Wells, 10 Beavan, 84, and 3 Bradf. Sur. Rep. 35. But in regard to wills, executed under a power requiring certain formalities, where the attestation of the witnesses is spe cific, enumerating a portion of the requisites of the power, and being silent as to others, it has been settled by a series of decisions, that such an instrument is not a good exccution of the power. Wright v. Wakeford, 4 Taunt. 213; s. c. 17 Vesey, 454; Doe d. v. Peach, 2 M. & S. 576; Wright v. Barlow, 3 M. & S. 512. And even where the attestation is general, as "Witness our hand,” or "In presence of us," and there is nothing on the face of the will to show that the formalities required by the power have been complied with, it is not a good execution. Moodie v. Reid, 7 Taunt. 355; Stanhope v. Keir, 2 Sim. & Stu. 37. But where the attestation clause is general, and the clause immediately preceding the execution by the testator contains all the requisites of the power, it was decided by the House of Lords, reversing the judgment of the Exchequer Chamber, and affirming that of the Queen's Bench, that the witnesses must be deemed, by this general form of attestation, to refer, either to all that appeared on the face of the will, or at the least, to what is specified in the clause which was signed by the testator immediately preceding their own attestation; it being shown by parol, that the requirements of the power were complied with. Burdett v. Spilsbury, 6 Man. & Gran. 386-470; s. c. 4 Ad. & Ellis, 1; 9 id. 936. There is a great diversity among the judges, in their opinions before the House of Lords, in regard to the proper meaning of "attestation" by the witnesses to a will. Wightman, J., regarding it as synonymous with witnessed; others, and a large majority, regarding it as having reference to the attestation