Whether making a mark,

where the party

is unable to

write, is a suf

ficient signing or subscribing.

The opinion of Sir John Strange, Master of the Rolls, was on this point agreeable to that declared by the Chief Justice. He observed, that he was not convinced that sealing was signing; for sealing identified nothing; it carried no character; and most seals were affixed by the stationers, who prepared the paper. Lord Hardwicke did not, according to the report, speak, in this case, as to the question of sealing; but in a case which had been determined by him two years before, his Lordship had expressed himself in stronger language to the same effect with the Lord Chief Justice Willes and Sir J. Strange; he then declared, that the statute, by requiring the will to be signed, undoubtedly meant some evidence to arise from the hand-writing; then how could it be said, that putting a seal to it, would be a sufficient signing? for any one may put a seal; no particular evidence arises from a seal; common seals are alike; no certainty or guard therefore arises from thence."

In Lemayne v. Stanley, as

Till a late case it was a considerable doubt with the profession, whether, if a testator or witness, could not write his name, he might satisfy the statute by making his mark. it is reported in Freeman, it is said that the court were of opinion, that it was not necessary for the testator to write his name, for some cannot write, and then their mark is a sufficient signing. But

Grayson v. Atkinson, 2 Vez. 459.

Freem. Rep. 538.

this opinion, though entitled to great deference, as being stated to have been that of the court and not of a single judge, yet as being uncalled for by the facts of the case, must be regarded as extra-judicial. Hudson's case', which was determined about a year after Lemayne and Stanley, where two witnesses swore that J. S. the testator did not publish the writing as his will, but that A. B. guided his hand, and J. S. made his mark, but said nothing, is too mixed a case to be admitted as an authority to this point.

The observations made by Sir John Strange in the above cited case of Ellis v. Smith, on the question as to sealing, do certainly seem as strongly to apply to a testator's mark, for it identifies nothing: it carries no character. But in the late case of Harrison v. Harrison, it was decided by Lord Eldon, that the attestation of a devise by a mark, was good within the statute; and as the statute requires the attestators to subscribe, and the testator to sign, it may be thought that the principle of this determination is applicable a fortiori to the signature of the testator himself, since the word subscribe' seems much more forcibly to point to the actual hand-writing, than 'sign,' which, without any strain upon its grammatical sense, though, perhaps, not without some sacrifice of its popular and usual acceptation,

might be deemed to be satisfied by any symbol of the testator's consent and ratification (5).

In the above-mentioned case of Harrison v. Harrison, the question was made upon a bill by devisees against the heir, whether the will was duly executed to pass real estate according to the statute of frauds, one only of the witnesses having subscribed his name, the two other having attested by setting their marks respectively. Lord Chancellor Eldon observed, that upon inquiry from Mr. Serjeant Hill, he had found, that there was a special case reserved in the Court of Common Pleas upon the question whether, a will devising real estate was well executed, one of the witnesses being a marksman; and it was held clearly sufficient. It was a case of Gurney v. Corbet in 1710, in a note-book, which was the property of Mr. Justice Burnet. His Lordship said, he thought there might have been a great deal of argument upon it originally. But upon this authority the plaintiff must take a decree. In a few months afterwards the same point was determined by Sir William Grant, Master of the Rolls, in Addy v. Grix',

18 Vez. jun. 504.

(5) The counsel for the plaintiff is stated to have adverted to the difference of expression in the statute, with reference to the witnesses and the devisor; and to have remarked the difficulty of making the proof, in case of the witnesses being dead.

agreeably to the decision of the Chancellor in Harrison v. Harrison, and it therefore seems now to be at rest (6).

the witnesses attest upon the acknowledgment

of his signature,

him actually

It seems to be fairly inferrible from the decision in It is fufficient if Lemayne v. Stanley, that the court were of opinion, that it was not necessary that the witnesses should by the testator attest the very act of signing, but that an acknow- without seeing ledgment by the testator, that the act of signing sign. was done by him, was sufficient for them to attest; for since not the sealing, but the writing over the will with the testator's name in it, was the ground of the decision, the witnesses must have seen this done, if it was judged insufficient for them to attest upon the acknowledgment of the testator; but this was not so found by the jury, or it would have put an end to all controversy upon the case; and if the witnesses did not attest the writing of the whole will by the testator, their attestation could only go to his acknowledgment of his signature. This point, however, seemed to exist in some doubt during a long

(6) According to the report of the case of Lemayne v. Stanley, in Freeman, the court were of opinion, that if the testator had his name on a stamp, it would be enough if he impressed his name instead of writing it. And in Strange v. Barnard, 2 Bro. C. C. 585. it was held, that stamping was equivalent to sealing. By the civil law, if a testator could not write, he was not admitted to make his mark, but an eighth subscribing witness (seven being the ordinary legal number) was called in to subscribe in the place of the testator.

C. 6. 23. 1.

time after the statute was passed. In Dormer v. Thurland", where the will was not signed by the testator in the presence of the witnesses, but he acknowledged it to be his hand, and declared it to be his will in their presence, Lord Chancellor King inclined to think that the will was good, but ordered the point to be reserved, and made a case for further consideration (7).

However, in Stonehouse v. Evelyn", which came before the Master of the Rolls (Sir J. Jekyll) a few years afterwards, the will was held good, though the witnesses did not see the testator sign it, but he owned it before them to be his hand. And the reporter adds, that on his mentioning this opinion of the Master of the Rolls to Mr. Justice Fortescue Aland, he said it was the common practice, and that he had twice or thrice ruled it so upon evidence on the circuit; and that it was sufficient if one of the three subscribing witnesses swore that the testator acknowledged the signing to be his own hand writing.

Sir Joseph Jekyll had delivered a similar opinion a little before in a case of Smith v. Codron, cited by Lord Hardwicke in Grayson v. Atkinson. In that case A signed and published a will in the presence of

m 2 P. Wms. 506.

3 P. Wis.

• 2 Vez. 455.

(7) But the judges of B. R. on argument held the will void, as a charge, for want of being sealed, according to the direction of the

power.