signed as his will (a), and no 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 (b), either with or without a blank space intervening, or shall follow (c) 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 (d) above the signature, or by the circumstance that there shall appear to be sufficient space (e) on or 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. In bonis Jones, 34 L. J. P. 41; 4 Sw. & T. 1; In bonis Williams, 1 P. & D. 4; In bonis Coombs, 1 P. & D. 302 (a); In bonis Walker, 2 Sw. & T. 354; In bonis Casmore, 1 P. & D. 653 ; In bonis Pearn, 1 P. D. 70 (b); In bonis Puddephatt, 2 P. & D. 97; In bonis Horsford, 3 P. & D. 211 (c); In bonis Wright, 34 L. J. P. 104; 4 Sw. & T. 35; Hunt v. Hunt, 1 P. & D. 209; In bonis Archer, 2 P. & D. 252; In bonis Wotton, 3 P. & D. 159 (d); In bonis Williams, 1 P. & D. 4 (e).

under

The same section enacts that no signature shall be Words operative to give effect to any disposition or direction signature. which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made. See In bonis Greator, 2 Jur. N. S. 1172; In bonis Dallow, 1 P. & D. 189; In bonis Ainsworth, 2 P. & D. 151; In bonis Dearle, 39 L. T. N. S. 93; In bonis Arthur, 2 P. & D. 273.

2. Signature must be witnessed.

Will not void for incompetency

If the signature of the testator intended to be in execution of the will is followed by words intended to form part of the will, effect may be given to the part of the will preceding the signature, if that part in effect constitutes the whole of the dispositive portion of the will. Keating v. Brooks, 2 Curt. 421; 4 N. of C. 260; In bonis Davis, 3 Curt. 748; In bonis Cotton, 6 N. of C. 307; 1 Rob. 658; see In bonis Topham, 7 N. of C. 272; 2 Rob. 189; Sweetland v. Sweetland, 4 Sw. & T. 6, in which case the question was whether there was a due execution of any part of the will.

The same rule applies if the words following the signature contain unimportant bequests or appoint executors only. In bonis Standley, 7 N. of C. 69; 1 Rob. 755; In bonis Amiss, 7 N. of C. 274; 2 Rob. 116.

In the second place, the signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time.

The signature of the testator must be written or acknowledged by the testator in the presence of both witnesses together, before either of them attest and subscribe the will. In bonis Allen, 2 Curt. 331; In bonis Olding, ib. 865; In bonis Byrd, 3 ib. 117; Moore v. King, ib. 243; Pennant v. Kingscote, ib. 643; In bonis Summers, 2 Rob. 295; Cooper v. Bockett, 3 Curt. 648; 4 Moo. P. C. 419; Hindmarsh v. Charlton, 1 Sw. & T. 433; 8 H. L. 160.

The Wills Act (1 Vict. c. 26), s. 14, provides that if any person who shall attest the execution of a will shall, of witness, at the time of the execution thereof or at any time afterwards, be incompetent to be admitted a witness to prove the execution thereof, such will shall not, on that account, be invalid.

Section 15 enacts in effect that a will attested by a beneficiary under the will is valid, though the gift to the attesting witness is void.

Section 16 enacts that, in case by any will any real or personal estate shall be charged with any debt or debts, and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor, notwithstanding such charge, shall be admitted a witness to prove the execution of such will, or to prove the validity or invalidity thereof.

Section 17 enacts that no person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof.

ture made

of wit

nesses.

Where the testator writes something on the will in the a. Signapresence of the witnesses summoned to attest the will, it in presence will be presumed that he wrote his signature, though the witnesses may not see the signature and may not know that the document is his will. Smith v. Smith, 1 P. & D. 143.

knowledg

The acknowledgment may be by gestures. In bonis b. AcDavies, 2 Rob. 337; In bonis Owston, 10 W. R. 410. ment of Acknowledgment by a third person in the hearing of signature already the testator, and acquiesced in by him, is an acknowledg- made. ment by the testator. In bonis Jones, Dea. & Sw. 3; In bonis Bosanquet, 2 Rob. 577; Faulds v. Jackson, 6 N. of C., supp. 12; Inglesant v. Inglesant, 3 P. & D. 172.

know

It is clear that if the will is acknowledged to be the Will actestator's will, and the witnesses see the signature of the ledged ; testator, that is sufficient. In bonis Dinmore, 2 Rob. 641; In bonis Philpot, 3 N. of C. 2.

signature

seen.

acknow

is ledged; signature

Further, if the testator acknowledges a document as Will his will, or gives the witnesses to understand that it his will, it is not necessary that he should expressly acknow- not seen. ledge his signature, or even that the witnesses should see the signature, if there is nothing on the face of the will to lead to the presumption that the signature was added afterwards. Lloyd v. Roberts, 12 Moo. P. C. 158; In

Signature

not ac

knowledged.

bonis Warden, 2 Curt. 334; Blake v. Knight, 3 Curt. 547; Gwillim v. Gwillim, 3 Sw. & T. 200; 29 L. J. Prob. 31; In bonis Huckvale, 1 P. & D. 375; Cooper v. Bockett, 3 Curt. 648; 4 Moo. P. C. 419; Beckett v. Howe, 2 P. & D. 1; Kelly v. Keatinge, I. R. 5 Eq. 174; In bonis Pearn, 1 P. D. 71. The cases of Hudson v. Parker, 1 Rob. 14; In bonis Trinder, 3 N. of C. 275, are overruled.

A request to sign a paper not declared to be a will, seen; will when the witnesses see the signature of testator, though it is not acknowledged by the testator as his signature, is sufficient. Keigwin v. Keigwin, 3 Curt. 607; Gaze v. Gaze, 3 Curt. 451; In bonis Ashmore, 3 Curt. 756; In bonis Thomson, 4 N. of C. 643; Faulds v. Jackson, 6 N. of C. suppl. 1; Leech v. Bates, 6 N. of C. 704; Inglesant v. Inglesant, 3 P. & D. 172; see, however, In bonis Arthur, 2 P. & D. 273.

Signature not seen; will not acknowledged.

But a mere request to witnesses to attest an instrument, the nature of which is not explained to them, and the signature to which they do not see, is not sufficient. In bonis Ashton, 5 N. of C. 548; In bonis Rawlins, 2 Curt. 326; In bonis Hammond, 3 Sw. & T. 90; In bonis Harrison, 2 Curt. 863; In bonis Pearson, 33 L. J. P. 177; Ilott v. Genge, 3 Curt. 160; 4 Moo. P. C. 265; Hudson v. Parker, 1 Rob. 14; In bonis Trinder, 3 N. of C. 275; Shaw v. Neville, 1 Jur. N. S. 408; In bonis Swinford, 1 P. & D. 630; Pearson v. Pearson, 2 P. & D. 451 ; Fischer v. Popham, 3 P. & D. 246.

When the testator's will is signed by some other person by his direction, the signature must be acknowledged by the testator in presence of two witnesses; it is not sufficient that the witnesses see the signature written if they are not present when the testator directs the signature to be made, and the will is not acknowledged as a will. Burke v. Moore, I. R. 9 Eq. 609.

In the third place, such witnesses shall attest and sub- 3. Signature by scribe the will in the presence of the testator, but no form witnesses. of attestation is necessary.

need not

each

The witnesses must subscribe in the presence of the Witnesses testator, but they need not subscribe in the presence of sign in each other. White v. British Museum, 6 Bing. 310; other's Faulds v. Jackson, 6 N. of C. sup. 1; In bonis Webb, 1 presence. Jur. N. S. 1096; 2 ib., 309; Sullivan v. Sullivan, 3 L. R. Ir. 299; see Casement v. Fulton, 5 Moo. P. C. 14.

of the

The witnesses will be considered to have subscribed in Presence the presence of the testator if, under the circumstances, testator. the testator might have seen them if he had chosen to look, though he may not have seen them. Shires v. Glascock, 2 Salk. 688; Davy v. Smith, 3 Salk. 395; Todd v. Winchelsea, M. & Malk. 12; 1 C. & P. 488; Casson v. Dade, 1 B. C. C. 99; Doe v. Manifold, 1 M. & S. 249; Winchelsea v. Wauchope, 3 Russ. 441; In bonis Newman, 1 Curt. 914; In bonis Ellis, 2 ib., 395; Newton v. Clarke, 2 ib. 320; In bonis Colman, 3 ib. 118; Tribe v. Tribe, 7 N. of C. 132; 1 Rob. 775; Norton v. Bazett, Dea. & Sw. 259; 2 Jur. N. S. 766; 3 Jur. N. S. 1084; In bonis Trinmell, 11 Jur. N. S. 248; In bonis Piercy, 1 Rob. 278; Jenner v. Ffinch, 5 P. D. 106.

The signatures of the witnesses need not be in any Position of signatures. particular part of the will, if it appears that they were intended to attest the operative signature of the testator. In bonis Davis, 3 Curt. 748; In bonis Chamney, 1 Rob. 757; Roberts v. Phillips, 4 E. & B. 450; In bonis Wilson, 1 P. & D. 269; In bonis Pearse, 1 P. & D. 382; In bonis Braddock, 1 P. D. 433.

must be

with will.

But the signatures, if not on the same paper as the Signatures will, must be on a paper physically connected with it. connected In bonis West, 12 W. R. 89; In bonis Saunders, 31 L. J. P. 53; Cook v. Lambert. 32 L. J. P. 93; 3 Sw. & T. 46; In bonis Gausden, 2 Sw. & T. 362; In bonis