4. Under this act, the signature being at the end of a notarial certificate immediately following the will, and detailing the circumstances under which it was made, was held sufficient, under the latest English statute.*

5. By the late English statutes it is required, that the "signature" of the testator shall be made or acknowledged in the presence of the witnesses. Under this provision it has been held, that the acknowledgment of the paper as the testator's will, is not sufficient, but that the thing to be acknowledged by the testator is his "signature," whether made by himself, or by another for him. Hence there is no sufficient execution, unless the witnesses either saw, or might have seen the testator sign, or there is something which amounts to an express acknowledgment of the signature as his. Where the witnesses saw, or might have seen the testator affix his name to the paper, nothing further is required than that the testator should state the paper to be his will, or direct the witnesses to put their names under his, or that he, or some one in his presence, should request the witnesses to sign.8 And even where the witnesses did not see the testator sign his name, or were not in a situation where they might have seen him sign, it seems to be the more satisfactory opinion, that it is not necessary that the testator should state to

.

upon the ground that the defence had been made in good faith. The mere fact that the names of the two witnesses are not written in the same ink proves nothing. For at the same time they might have subscribed at different tables and out of different inkstands. And with the same ink, the quantity shed from different pens, by different hands, gives different shades of color.

* Page v. Donovan, 3 Jur. N. s. 220.

Moore v. King, 3 Curt. 243; 7 Jur. 205; Hudson v. Parker, 1 Rob. 14; Shaw v. Neville, 1 Jur. N. s. 408.

* Re Regan, 1 Curt. 908.

' 1 Jarman, Eng. ed. 1861, 102, and cases cited; Ilott v. Genge, 4 Moore, P. C. C. 265.

* 1 Jarman, Eng. ed. 1861, 102, and cases cited; Re Davis, 3 Curt. 748; Re Ashmore, id. 756; 7 Jur. 1045; Gaze v. Gaze, 3 Curt. 451; 7 Jur. 803.

the witnesses that it is his signature. The production of the will by the testator, it having his name apparent upon it, and a request to the witnesses to attest it, would be a sufficient acknowledgment of the signature under the statute. And an intimation to this effect by the testator, by gestures, will have the same force as a declaration.10 And it seems not indispensable that the witnesses should be told that the instrument is a will." And even where they were deceived into the belief that it was a deed, and not a will, which they were called to witness, it will not have the effect to invalidate the execution.12

6. The result of the decisions under the existing English statutes seems to be, that the testator must sign, or acknowledge his signature before either of the witnesses subscribe, and that a subsequent acknowledgment will be of no avail.18 The signature of the testator must also be made or acknowledged in the presence of the witnesses at the same time.14 And the witnesses must subscribe their names in the presence of the testa

1 Wms. Exrs. 77; Sir Herbert Jenner Fust, 3 Curt. 172, 175; Leech v. Bates, 6 Notes Cas. 704.

10 Re Davies, 2 Rob. 337.

"Keigwin v. Keigwin, 3 Curt. 607; 7 Jur. 840.

12 1 Jarman, 102, and cases before cited, upon same point under statute of frauds. Sugden's Essay on Wills, 334; Faulds v. Jackson, 6 Notes Cas. Supp. 1.

18 Re Summers, 7 Notes Cas. 562; 14 Jur. 791; 2 Rob. 295; Re Olding, 2 Curt. 865; Re Byrd, 3 Curt. 117; Cooper v. Bockett, id. 648; Charlton v. Hindmarch, 5 Jur. N. s. 581.

Re Allen, 2 Curt. 331; Re Simmonds, 3 id. 79; Moore v. King, id. 243; 7 Jur. 205. This last point was long considered doubtful. Sugd. on Wills, 15 Essay, 336; but was finally decided in favor of the will. But in a case occurring shortly after, Lord Brougham, Casement v. Fulton, 5. Moore, P. C. C. 140, said, if the statute required the witnesses to sign in the presence of each other, the committee were bound by it, and that there could be no reasonable doubt raised, that the words of the act amounted to this requisition.

tor, but it is not indispensable this should be done in the presence of each other.15

7. The late English statute dispenses with any form of attestation. And the rule of law, as to signing by the hand of another, or by mark, seems to be the same under that statute as under the statute of frauds.16

8. The present English statute expressly dispenses with the credibility or competency of the witnesses to a will. Hence an interested or an infamous witness is sufficient, and it has been considered that even an imbecile, or an insane witness, might also be sufficient. But it has been questioned whether the provision. could fairly be construed to extend to a witness wanting in the requisite capacity to understand the transaction, but no case has so held.18

9. According to the recent edition of Jarman's work on wills, "the cases respecting the local position of the testator's signature, and as to the admissibility of an acknowledgment, as a substitute for signing before the witnesses, the necessity of publication, and the qualifications of attesting witnesses, are obviously no longer applicable" under the present statutes.1

19

15 Faulds v. Jackson, 6 Notes Cas. Supp. 1; Sugden's Essay, 737; Re Webb,

1 Jur. N. s. 1096.

16 1 Jarman, 104.

"Sugden's Essay, 334, 335.

18 1 Jarman, 104, 105.

19 1 Jarman, 106, 107. We have already mentioned that the present English statute dispenses with publication, and hence the decisions on that point under the former act are of no force under this. In regard to this point, Lord St. Leonards says, Essay, 309: "The getting rid of publication is a great improvement." But why, it may be asked, if it meant nothing under the former act? Ante, § 18, pl. 12 and 13, and notes. This avowal, by so competent a judge of the matter, confirms our former impression, that the statute of frauds really did require publication; but nothing more than a declaration that the paper produced by the testator is his will, and that he desires the witnesses to attest it as such, is fairly implied in that requirement. And it is certainly not important,

10. But it is the advice of all men experienced in the law appertaining to this complicated and difficult subject, and especially those who have had experience in the preparation of last wills, that care should be exercised, not only to have all legal formalities strictly complied with, but that these should be carefully enumerated in the attestation clause to be subscribed by the witnesses, which will not only tend to aid the recollection of the witnesses, but the better enable the court to give the true construction to the transaction.

SECTION IX.

CODICILS

THEIR ORIGIN, NATURE, HISTORY, AND CONSTRUCTION.

1. Codicils in our law, at the present day, are an alteration of one's will.

2. In the Roman Civil Law codicils were informal testaments.

3. There were two kinds of codicils by that law, the latter very similar to ours.

4. All the codicils are to be regarded as parts of the will, and the whole will con

strued together.

5. Codicils have the effect to bring the testamentary acts all to their own date.

6. Codicils, duly executed, may republish and set up papers not formally executed. 7. It will be convenient to here omit other rules affecting codicils.

8. The origin of codicils while Lucius Lentulus was proconsul of Africa.

9. By the law of Louisiana codicils are not recognized as distinct from wills. 10. Codicil may operate as a republication of the will, if inoperative in other respects. 11. Codicil, prima facie revoked, by destruction of will.

that this should be done with any particular formality. All that is really implied by publication, as before stated, is that the witnesses should have some satisfactory assurance from the testator, either by word or act, or silence, when others are acting on his behalf in his presence, that he desires the witnesses to understand that he is executing, and that they are attesting, his last will and testament. This is all that the term ever could imply. But as shown by us, in § 18, the English decisions certainly did not require even this under the statute of frauds. And when the courts had practically dispensed with publication, the legislature unquestionably did well to dispense with it altogether. Ante, § 18, pl. 12 et seq. and notes.

12. Erroneous recital of the will in the codicil, has no effect upon its construction. 13. Disposition of all the estate by codicil may not include specific bequests in will.

§ 23 a. It seems scarcely necessary to give any more formal exposition of the matter of codicils than what will naturally occur in treating upon the several subjects where they become operative. For the convenience of the student, however, we have judged it proper to bring together here some few points affecting that subject, which either will not occur in other portions of the work; or, if so, not in a form so much fitted for their instruction.

1. A codicil, in the sense in which it is now universally used, in the English and American law, may be defined to be some addition to, or qualification of, one's last will and testament. The term codicil, as stated in our definition of it, is derived from codicillus, a diminutive of codex, and literally imports a little code, or writing; a little will, or testament. In the Roman Civil Law, codicil was defined as an act which contains dispositions of property, in prospect of death, without the institution of an heir or executor.1 And the early English writers define the term much in the same way.

the term is that first given.3

But the present definition of

2. By the Roman Civil Law, and a similar rule obtained in the canon law, and in the early English law, it was considered, that no one could make a valid will, or testament, unless he did make an executor, as that was of the essence of the act. was attended with great solemnity and formality, in the pres

This

1

2 Domat, by Strahan, 485, pt. 2, book 4, sec. 1, art. 1; Inst. § 2, 1. 2, tit. de codicillo.

8

Swinburne, pt. 1, sec. 5, pl. 2. This writer declares that a codicil differs only from a testament in that it is made "without the appointment of an executor."

1 Wms. Exrs. 8. "A codicil is an addition or supplement to a will, and must be executed with the same solemnity." 4 Kent, Comm. 531; Brant v. Willson, 8 Cowen, 56; Costor v. Costor, 3 Sandf. Ch. 111.