subscribed the will in his presence. And whether this was a good will to pass land within the statute of frauds, was the question. After several argu

a

ments, it was adjudged by the whole court, consisting of North Chief Justice, and Wyndham, Levinz, and Charlton, Justices, to be a good will; for being written by himself (2), and his name being in the will, it was a sufficient signing within the statute, which did not appoint where the will should be signed, at the top, bottom, or margin, and that therefore a signing in any part was sufficient. And soon after, in the 37th year of the same King, the doctrine was stated still more loosely by Lord Chief Justice Jefferies, who the report says, seemed to hold, that a will written all by a testator's own hand, and acknowledged in the presence of three credible witnesses, would be within the intention of the statute, though it were not signed by him according to the words of the act. And this doctrine has been acceded to as settled whenever it has since come under consideration. So in Stokes v. Moor", the case of an agreement was said to be like that of wills, upon which it was said to have been determined, that the testator's writing his name in the introduction of the will, was a good

(2) The Emperors Theodosius and Valentinian allowed every holograph testament to be available, though made without witnesses. Novell, Theod. lib. 2. tit. 4.

But if the testator begins to

signing within the statute. And in the late case of Coles v. Trecothic (3), Lord Eldon took notice, that it had been often held in respect to wills, that if a testator begins his will with the formal introduction of "I, A. B. do make this my last will," it was a sufficient signing.

In Right v. Price there was an appearance of greater strictness. According to which case it apnot complete it, pears, that if the testator shews an intention to sub

sign in regular

form, and does

the statute, as

it seems, is not scribe the will in regular form, by beginning to

satisfied..

write his name at the bottom, but being overtaken by weakness or incapacity, before he has completed such intention, he becomes incapable of executing his purpose, the will is not sufficiently signed within the act. In that case, a will had been prepared in five sheets, and a seal affixed to the last, and, likewise, the form of attestation was written upon it, and the will was read over to the testator, who set his mark to the two first sheets, and attempted to set it to the third, but being unable from the

(3) 9 Vez jun 249.-But his Lordship seemed to think, that for this formal introduction to be a sufficient signing, it should be one simultaneous act, and that, the whole act or intended instrument should be in the contemplation of the testator at the time of his writ ing such formal introduction. And in this view it may deserve consideration, how far, if a will be written on different pieces of paper, or at different times, such a formal beginning will be equivalent to a regular signing.

weakness of his hand, he said, "he could not do it, but that it was his will." And on the following day, being asked if he would sign his will, he said, "he would," and attempted again to sign the two remaining sheets, but was not able to do it. The case was decided upon another ground, but the Court of King's Bench seemed to be of opinion, that this was not a sufficient signing; for the testator, when he signed the two first sheets, had an intention of signing the others; he did not, therefore, mean the sig→ nature to the two first sheets, as the signature of the whole will; and consequently there never was a sig nature of the whole, but only a beginning to sign.

In Lemayne v. Stanley, the writing of the name in the introduction of the will, was all the signing contemplated by the testator, and as far as such a mode could be held a literal accomplishment of the statute, his intention in respect to his will was completed, his mind being in no suspense, nor looking to any further or future act of authentication. But in Right v. Price, the testator expressly announced an intention to authorize the instrument in a regular and solemn way, and therefore his will seemed to be inchoate until this was done; why it was not done was to be explained; and so the case could only be established by those parol proofs, which it was the 'object of the statute to exclude.

In the case of Lemayne v. Stanley, above cited, Whether sealing three of the judges, including the chief, were of

is signing.

opinion, that the testator, by putting his seal to the will, had sufficiently signed within the statute, for they said that the signum was no more than a mark, and sealing was a sufficient mark that it was his will.

In Warneford v. Warneford', which, after a long interval, seems to have been the next case in which this question came to be considered, it is said to have been held by Lord Raymond, on an issue out of chancery of devisavit vel non, that sealing a will was a signing within the statute of frauds. We are to observe, that in Lemayne v. Stanley, the opinion of the judges must be regarded as spoken obiter, the case being decided on the ground of the sufficiency of the insertion of the name in a will, written by the testator; and the point in Strange, as stated only in a short note, was agitated at nisi prius only. But this doctrine was but ill received in the subsequent case of Smith v. Evans, wherein Lord Chief Baron Parker, Baron Clive, and Baron Smith, (in the absence of Baron Legg) are stated to have said, that the opinion of the three judges in Lemayne v. Stanley was very strange; for that if it were so, it would be very easy for one person to forge another man's will, by only forging the names of any two persons dead, for he would have no occasion to forge the testator's hand.

And the same judges declared, that if the same

thing should come into question again, they would not hold that sealing a will only, was a sufficient signing within the statute. The Chief Baron seems to have been less resolved on the same question, in the opinion delivered by him in Ellis v. Smith', in which he thus expressed himself: "As to the point, whether sealing be signing; I own I think it is not; for the character and hand-writing are necessary, and were designed to prevent or detect frauds and impositions. But, however, said his Lordship, as in some cases it has been thrown out obiter, and in one case decreed, that it is equal to signing, I shall submit my opinion." But Willes C. J. said decidedly in the same case, that he did not think sealing was to be considered as signing; and he added, that he declared so then, because, if that question ever came before him, he should not think himself precluded from weighing it thoroughly, and decreeing, that it was not signing, notwithstanding the obiter dicta, which in many cases were nunquam dicta, but barely the words of the reporters; for, upon examination, he had found that many of the sayings ascribed to that great man, Lord Chief Justice Holt, were never said by him (4).

f Reported in 1 Vez. jun. 11.

(4) See Show. 69. Lea v. Libb, where Lord Holt is said to have held sealing to be a signing.