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without any name at the bottom (r); though the other is the safer way (12). It has also been determined, that though the witnesses must all see the testator sign, or at least acknowledge the signing, yet they may do it at different times (s). But they must all subscribe their names as witnesses in his presence, lest by any possibility they should mistake the instrument (†) (13). And, in one case determined by the court of King's Bench (u), the judges were extremely strict in (r) 3 Lev. 1. (t) 1 P. Wms. 740. (u) Stra. 1253.

(s) Freem. 486; 2 Ch. Cas. 109; Pr. Ch. 185.

will. (Shepherd v. Shepherd, 5 T. R. 52, n; Doe v. Barford, 4 Mau. & Sel. 12. See, however, Johnstone v. Johnstone, 1 Phillim. 467, 474.)

Of course there could be no good ground for presuming that a will of real estate was revoked by the subsequent marriage of the testator, who was at the time he made such will, a widower having children, of whom one was his heir apparent. In such case, to hold the will revoked as to the real estate, on account of the birth of children of a second marriage, would only have the effect of letting the eldest son by the first marriage into the whole. (Sheath v. York, 1 Ves. & Bea. 397; and see 7 Ves. 366.) But, where a testator, after having made a provision by will for children by his then subsisting marriage, becomes a widower, and afterwards marries again, and has a family by his second wife; the ecclesiastical court may, perhaps, on reasonable grounds, declare the will revoked as to the personal estate, thereby letting in the after-born children to participate with those of the first marriage. (Hollway v. Clark, 1 Phillim. 342; Emerson v. Boville, 1 Phillim. 344. See, however, Thompson v. Shepherd, 2 Cox, 165, 168; Johnstone v. Johnstone, 1 Phillim. 472. It is at present, (May, 1836,) under the consideration of our legislators whether marriage shall not, in all cases, operate as a revocation of a previous will.

(12) Mr. Christian, in his note upon the text, says, "I conceive that writing the name at the beginning would never be considered a signing according to the statute, unless the whole will was written by the testator himself: for whatever is written by a stranger after the name of the testator, affords no evidence of the testator's assent to it, if the subscription of his name in his own hand is not subjoined." [See Coles v. Trecothick, 9 Ves. 248; Morison v. Turnour, 18 Ves. 183; Stokes v. Moore, 1 Cox, 223.ED.]

(13) Mr. Christian observes, that "it has been determined to be in his presence, if he is apprised at the time of the attestation of the witnesses, and was in a situation from which he might have seen the witnesses subscribe their names. As in a case where the testator's carriage was drawn opposite the windows of an attorney's office, in which the witnesses attested the will, this was clearly determined to be in the testator's presence. 1 Bro. 99. [See Brodrick v. Brodrick, 1 P. Wms. 239; Doe v. Manifold, 1 Mau. & Sel. 296.] The object of this requisition in the statute is, to prevent the testator and the witnesses from being imposed upon by the substitution of another instrument, or a fabricated will. Hence the attestation of a will is void, if at the time the testator is in a state of insensibility. (Doug. 229.)"

regard to the credibility, or rather the competency, of the witnesses for they would not allow any legatee, nor by consequence a creditor, where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the establishment of the will; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasors and creditors, and threatened to shake most of the titles in the kingdom that depended on devises by will. For, if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if, in such case, the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and 25 Geo. II. c. 6. the credit of such legatees, by declaring void all legacies (14) given to witnesses, and thereby removing all possibility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (like that of all other witnesses) to be considered, on a view of all the circumstances, by the court *and jury before whom such will shall be contested. And [*378 ] in a much later case (v) the testimony of three witnesses who were creditors, was held to be sufficiently credible, though the land was charged with the payment of debts; and the reasons given on the former determination were said to be insufficient (15).

(v) M. 31 Geo. II.; 4 Bur. I. 430.

(14) This extends to devises of lands, and every interest given to the witnesses.-CH.

(15) A person who signs his name as witness to a will, by this act of attestation, solemnly testifies the sa

nity of the testator. Should such
witness afterwards attempt to im-
peach his own act, and to prove that
the testator did not know what he
was doing when he made (what pur-
ported to be) his will; though such

By statute 3 & 4

W. & M. c. 14,

Another inconvenience was found to attend this new

creditors by bond method of conveyance by devise; in that creditors by bond

or other special


ties, may recover and other specialties, which affected the heir, provided he against the devisee, as well had assets by descent, were now defrauded of their securias the heir, of tenants in fee- ties, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 & 4 W. & M. c. 14, hath provided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple, or having power to dispose by will, shall (as against such creditors only) be deemed to be fraudulent and void (16): and that such creditors may maintain their actions jointly against both the heir and the devisee (17).

testimony will be far indeed from conclusive, (Hudson's case, Skin. 70; Digg's case, cited ibid.,) and Lord Mansfield held, that a witness impeaching his own act, instead of finding credit, deserved the pillory; (Walton v. Shelley, 1 T. R. 300; Lowe v. Jolliffe, 1 W. Bla. 366; S. C. 1 Dick. 389; Goodtitle v. Clayton, 4 Burr. 2225;) yet Lord Eldon held that the evidence of such parties was not to be entirely excluded; admitting, however, that it is to be received with the most scrupulous jealousy. (Bootle v. Blundell, 19 Ves. 504; Howard v. Braithwaite, 1 Ves. & Bea. 208.) And Sir John Nicholl has laid it down as a distinct rule, that no fact stated by any witness open to such just suspicion can be relied on, where he is not corroborated by other evidence. (Kinleside v. Harrison, 2 Phillim. 499; and see Burrowes v. Lock, 10 Ves. 474, with the additions to Mr. Christian's note to the next paragraph.)

(16) See the statutes cited ante, in pp. 260 & 340, which provide more effectually for the payment of just debts.

(17) Mr. Christian observes, that "a devise to raise a portion for younger children according to an agreement before marriage, and a devise for the payment of debts, are ex

ceptions in the statutes." [And they still continue so, under the recent enactments, it is not necessary, therefore, that the descent of the estate should be broken. It is enough if it appear, upon the face of the will, that the testator intended to break it. A mere charge is not indeed a legal interest, in such case; it is not a devise to any one: but it is a declaration of intention, upon which a court of equity will fasten; and whether the descent be broken or not, the charge will constitute equitable assets. (Shiphard v. Lutwidge, 8 Ves. 30; Kidney v. Coussmaker, 12 Ves. 154; Foley's case, 2 Freem. 49; Hungerford v. Earl, Ibid. p. 121; Hickson v. Witham, Ibid. case 12 in Append. to 2nd edit.) And where the testator has directed payment of his debts to be paid out of the "rents and profits" (if no words limiting the devise, expressly or by implication, to annual profits be used, (Ivy v. Gilbert, 2 P. Wms. 19; Mills v. Banks, 3 P. Wms. 7,) the estate may be sold. (Lingard v. Earl of Derby, 1 Br. 311; Ridout v. Earl of Plymouth, 2 Atk. 105; Bootle v. Blundell, 19 Ves. 528; S. C. 1 Meriv. 233; Anonym. 1 Vern. 104; Allan v. Backhouse, 1 Ves. & Bea. 75.) It has also been declared that, devisees in trust for payment of debts need not wait for a decree of a court of equity

operation of a

A will of lands, made by the permission and under the The nature and control of these statutes, is considered by the courts of law devise of lands. not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject; with this difference, that in other conveyances the actual subscription of the witnesses is not required by law (w), though it is prudent for them so to do, in order to assist their me(w) See pag. 307, 308.

for raising the money; but, without that, may fairly raise it by sale or mortgage (unless where it is directed to be raised by a perception of rents and profits); and the court of Chancery, if the matter be afterwards brought before it, will support the transaction. (Earl of Bath v. Earl of Bradford, 2 Ves. sen. 590.)-ED.]

"The execution of a will in a court of law is proved by calling one of the subscribing witnesses, who proves that the testator executed his will by signing and sealing in his presence, and in the presence of the other two subscribing witnesses. But if a bill is filed to establish a will, all the subscribing witnesses living must be examined, unless they are abroad, then their handwriting must be proved, as if they were dead. 5 Ves. jun. 411."

[See the note to Lord Carrington v. Payne, in 1 Hovenden's Suppl. to Ves. jun. Rep. p. 517, where this subject is discussed more at length, and the leading authorities collected. It is there observed, that the court of Chancery deems an heir entitled to evidence of his ancestor's sanity at the time of the execution of his will, (see note 15 to this page,) from every one of those whom the statute has placed round a testator at such a time as guards against fraud. (Harris v. Ingledew, 3 P. Wms. 93; Wallis v. Hodgson, 2 Atk. 56; Abrams v. Winshup, 1 Russ. 527.) This is not a mere technical rule. The design of this provision of the statute was to prevent wills from being set up which ought not; and it often operates si

lently, but forcibly, by intestacy : (Hindson v. Kersey, 4 Burn's Eccl. L. 91; Bootle v. Blundell, 19 Ves. 500; S. C. Coop. 138:) but when the best endeavours have been used to discover, and bring forward an attesting witness; if those endeavours are fruitless, the witness must be considered as dead. (Anonym. Godbolt, 326; M'Kenire v. Fraser, 9 Ves. 6; James v. Parnell, 1 Turn. & Russ. 417.) And it is not only when a witness is abroad, (Wood v. Stane, 8 Pr. 615,) that an exception to the general rule of complete examination is reasonable that rule will, in like man

ner, be relaxed, if, owing to any other cause, one of the witnesses cannot be made amenable to the jurisdiction of the court: (Fry v. Wood, 1 Atk. 445 :) this last circumstance, indeed, seems to afford the most substantial reason for a departure from the general rule; since, notwithstanding a witness may be abroad, a commission may, if necessary, (though the proceeding is inconvenient,) be sent out to examine him; and an account may be decreed in the mean time, before the return of the commission, although there may not be proper evidence upon which the will can be declared formally and finally proved. (Fitzherbert v. Fitzherbert, 4 Br. 430; Grayson v. Atkinson, 2 Ves. sen. 460; Wood v. Stane, 8 Pr. 615; Binfield v. Lambert, 1 Dick. 337.)

[Of course, if one of the witnesses become insane, he must be considered as if he were dead. (Bernett v. Taylor, 2 Ves. 382.)-ED.]

mory when living, and to supply their evidence when dead : but in devises of lands such subscription is now absolutely necessary, by statute, in order to identify a conveyance which in its nature can never be set up till after the death of the devisor. And upon this notion, that a devise affecting lands is merely a species of conveyance, is founded this distinction between such devises and testaments of personal chattels; that the latter will operate upon whatever the testator dies possessed of, the former only upon such real estates as were his at the time of executing and publishing his will (x) (18). Wherefore no after-purchased [* 379 ] *lands will pass under such devise (y), unless, subsequent to the purchase or contract (z), the devisor republishes his will (a) (19) (20).

(x) 1 P. Wms. 575; 11 Mod. 148.
(y) Moor. 255; 11 Mod. 127.

(18) Every devise of real estate is deemed specific; (Hill v. Cock, 1Ves. & Bea. 175; Milnes v. Slater, 8 Ves. 305;) and being considered in the nature of an appointment of particular lands to the devisee, it has been held a necessary consequence of this principle, (whether the principle itself be wise or not a question which, whilst this note is going through the press, is under the consideration of parliament,) that no man can legally devise lands to which he has not a legal title at the date of the appointment and of his death; nor can such a devise be held good in equity, where the equitable title at least was not in the devisor at the first of those periods, and the same estate, whether clothed or not with the legal title, continued in him up to his death: (Harwood v. Goodright, Cowp. 90; Howev. Earl Dartmouth, 7 Ves. 147; Rose v. Conynghame, 11 Ves. 554; Brudenell v. Boughton, 2 Atk. 272) with this qualification, however :-it is possible for the estate to have been devested by disseisin, in the time intervening between the date of the will and the testator's death, and yet, (the disseisin being purged by re-entry,)

(z) 1 Ch. Cas. 39; 2 Ch. Cas. 144. (a) Salk. 238.

the will may stand good, without republication. (Goodtitle v. Otway, 1 Bos. & Pull. 603, citing the leading case of Brunker v. Cook, 11 Mod. 128.) And even though a testator was disseised, at the time of making his will, of lands thereby devised, still, if he be remitted before his death, it should seem that the devise would be good; for, if re-entry, according to the language of all the cases and text books, has relation to all intents and purposes to the time of the disseisin, and the disseisee when remitted, is held to have had possession ab initio, (Monkton v. Pashley, 2 Lord Raym. 977,) then, a will of lands, notwithstanding it was executed when the devisor had only jus ad rem, not in re, may operate as a good devise. (Attorney General v. Vigor, 8 Ves. 282.) That, as a general rule, subject to some qualifications there stated, a devise becomes inoperative if the testator conveys the devised lands away after he has made his will, notwithstanding he may take back the very same estate in those lands, see ante, p. 376, note.

(19) A codicil duly executed, and attested by three witnesses, if such

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