11. But it must be confessed, these distinctions are somewhat refined and shadowy; and as they have now become, in England, and in most of the American states, substantially obsolete, by the statute requiring the same formality, in the disposition of personal as of real estate, we shall not attempt to pursue them further at this time.

12. It may be proper to suggest, that a practice prevails, to some extent, of executing wills in a formal manner, but referring the amount of the legacies, and sometimes the names of the legatees, to such a memorandum as the testator shall leave in some secret or private escritoire, or drawer, or cabinet, or pocketbook, or some other place, kept under the exclusive inspection and control of the testator. And in practice, such wills have commonly been carried into effect, without much scrutiny. But such a bequest, where the statutes require formalities in the `execution of wills of personalty, cannot be regarded as valid.

13. The most indulgence in that direction which the rules of law will allow is, that such legacies should be defined, or determined, by the reference and virtual incorporation of an existing paper, into the will, making such paper, in construction of law, a portion of the instrument, although not attached, and its contents not known to any one but the testator. The paper should be known to witnesses, so that its identity, as well as existence, may be susceptible of proof.12

14. In those states, where there is still a distinction between the formalities required in the execution of wills affecting real and personal estate, the point may be important to be borne in mind, that while a legacy, charged on land by the will, in general terms, may be given by a subsequent unattested codicil, the avails of the sale of land, as before stated, can only be disposed of by such an instrument as will be a sufficient devise of the land itself, the courts regarding the avails of land precisely the

12 Ante, § 21, pl. 14, et seq.

same as the land itself.18 It is held in America, that to give a legacy and make it a charge upon land, the will must be executed with the same formalities as are required in regard to real estate.14

SECTION VIII.

REQUIREMENTS IN THE EXECUTION OF WILLS, UNDER THE STATUTE OF 1 VICT. CH. 26.

1. The provisions of the statute 1 Vict.

2. The limited construction of the terms, "at the foot, or end thereof."

3. Construction of the amendatory act of 15 & 16 Vict.

4. Sufficient, if testator's signature followed a notarial certificate at the end of the

will.

5. Testator's signature must be made, or acknowledged, before the witnesses.

6. Existing requirements of the English law, as to the execution of wills.

7. That now dispenses with any formal attestation.

8. So also with the credibility of the witnesses.

9. Enumeration of the particulars in which the early and late English statutes differ.

10. An attestation clause still desirable in practice.

n. 19. No publication required by present English statute.

§ 23. 1. The statute now in force in England, requires that a will, both of personal and real estate, "Shall be signed at the foot, or end thereof by the testator, or by some other person, in his presence and by his direction; and such signature shall be made, or acknowledged, by the testator, in the presence of two or more witnesses, present at the same time, and such witnesses shall attest, and shall subscribe the will, in the presence of the testator, but no form of attestation shall be necessary."

2. The ecclesiastical courts adopted such a construction of

Hooper v. Goodwin, 18 Vesey, 156, 164. See also, Attorney-General v. Ward, 3 Vesey, 327; Brudenell v. Boughton, 2 Atk. 268.

14 Ex parte Winslow, 14 Mass. 421.

the words, "at the foot, or end thereof," by requiring that the signature of the testator should immediately follow the written words of the will, so that no space should remain, whereon any thing more could be written, that it became necessary to pass an additional statute, defining the import of these terms more carefully.1

3. Under the latter act, many questions have already arisen, in regard to the position of the testator's signature.2 In the

1 15 & 16 Vict. ch. 24. The enacting clause of this statute is, That the signature by the testator shall be valid, "if so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent, on the face of the will, that the testator intended to give effect, by such his signature, to the writing signed as his will; and that no such will shall be affected by the circumstance that the signature shall not follow, or be immediately after the foot, or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance, that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, either with or without a blank space intervening, or shall follow, or be after, or under, or beside the names or one of the names of the subscribing witnesses; or by the circumstance, that the signature shall be on a side or page, or other portion of the paper, or papers, containing the will, whereon no clause, or paragraph, or disposing part of the will shall be written above the signature; or by the circumstance, that there shall appear to be sufficient space, at the bottom of the preceding side, or page, or other portion of the same paper, on which the will is written, to contain the signature." "But no signature," &c., " shall be operative to give effect to any disposition, or direction, which is underneath, or which follows it, nor shall it give effect to any disposition, or direction, inserted after the signature shall be made."

2 Re Gullan, 4 Jur. N. s. 196; Trott v. Trott, 6 Jur. N. s. 760. In New York, where the statute requires that the testator must subscribe the will, and each witness sign his name "at the end," it was considered that this provision required that they should all agree as to what is the end of the will, and where the signature of the testator in one place was followed by the appointment of executors, to which the names of the witnesses were signed, and then followed a direction to the executors, signed only by the testator, the testator and the witnesses in no instance coinciding, as to where the end of the will was, it was held that the will was not validly executed. M'Guire v. Kerr, 2 Bradf. 244.

This seems to argue a very impracticable degree of refinement, but it is abun

case of Trott v. Trott, the testator, at the close of his will directed, that each of the legatees, including his father, mother,

dantly supported by the decisions of the English ecclesiastical courts, as to what is to be regarded as the end of the instrument. Goods of Milward, 1 Curt. 912, and other cases cited. And the argument of the learned surrogate, as a mere matter of dialectics, seems to be pretty conclusive, that if the statute requires both the witnesses and the testator to sign "at the end of the will," and they do not sign at the same place, they cannot both be "at the end." 2 Bradf. 244.

Perhaps the various refinements of the courts, as to what is really signing at the end of the will, springs, in some degree, from the dread of falling into the same error which the courts did under the statute of frauds, and which this statute was intended to remedy. For there is no doubt the statute of frauds, by requiring the will to be signed by the testator, in the presence of three or four witnesses, who were also required to subscribe their names, or to attest the subscription by the testator, was intended to require that both the testator and the witnesses should sign at the end of the instrument. And it was, in fact, as much a perversion of the statute, when the courts determined that the testator's name in the beginning of the will might be regarded as the testator's signature, as if they had held that the signature might be dispensed with. It was, in effect, the same thing. And we need not feel surprised that the courts are, at first, somewhat rigid in requiring the testator to sign at the very end of the will. But time will probably soften the asperity of these refinements, and we shall soon find the courts, in this country, adopting less rigid rules, or the legislature will have to interfere as it did in England. 2 Bradf. 244.

It is held sufficient, under the present English statutes, if the testator subscribe his name at the end of the will, in the attestation clause, thus: "Signed by me, John Walker, in the presence," &c. Walker in re, 8 Jur. N. s. 314; Torre in re, 8 Jur. N. s. 494.

So, also, where the names of the testator and the subscribing witnesses were written upon a paper, which had been before pasted at the foot or end of the will. Gausden in re, 8 Jur. N. s. 180. But where there was left a space, at the bottom of the will, and then a separate piece of paper was attached by wafers, upon which the attestation clause, the names of the testator, and of the attesting witnesses were afterwards written, the court, on motion, refused probate. Lambert in re, 8 Jur. N. s. 158. But the paper, being propounded, was afterwards admitted. The final conclusion of the learned judge seems to have been, that a paper attached to the main paper on which the will was written, will be regarded the same as if it had all been one paper, provided there is sat

brothers, and sisters, should, upon being paid his legacy, give a receipt "from all further claim upon the estate of their departed brother, Joseph Skidmore;" which was the only signature. Then followed the names of the witnesses, both of whom were deceased at the time of the probate, and one of the names of the witnesses was written in paler ink than the other. It was claimed, that the will was not signed at all, and that it could not fairly be presumed that the witnesses subscribed the will at the same time; but the court overruled both objcctions. Sir Creswell Creswell, said: "I see no reason to doubt that the deceased intended that his name, so written, should be his signature to the whole will." And in regard to the color of the ink being different in the two signatures of the witnesses, the learned judge said: "I think that is too slight a circumstance upon which to found any presumption, and, in the absence of evidence to the contrary, I must conclude omnia rite esse acta." 3

isfactory proof, or reasonable ground to presume, that the paper was attached before the execution, and that the paper was in the same state at the time of execution as at the time it is offered for probate.

And when the case of Lambert was brought before the Court of Probate again by the executors, and argued by counsel, the learned judge reconsidered his former decision, and held the will entitled to probate. "For it is apparent,” said the learned judge, "on the face of the will, that the testator intended to give effect, by such signature, to the writing signed as his will." Cook v. Lambert, 9 Jur. N. S. 258 (1863). But where a codicil was written upon the first side of a sheet of foolscap, and then a memorandum, "for my signature and witnesses see next side," which was blank, and also the third, side and the fourth side, except the signature of the testator and those of the witnesses, it was held no sufficient execution, the witnesses at the time of attestation seeing no writing. Hammond in re, 9 Jur. N. s. 581.

So, also, where the will covered four sides of letter paper, leaving no room for the execution of the same, and the attestation clause, with the signature of the testator and the witnesses, were written upon a separate half sheet of paper, and this was attached by three wafers to the bottom of the second page of the will, and there was no evidence whether the papers were in the same state at the time of the attestation, it was denied probate. West in re, 9 Jur. N. s. 1158.

3 The costs of the defendant were here allowed to come out of the estate,