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two persons who attested it in his presence; then a third person was called in, and the testator shewing him his name, told him that that was his hand, and bid him witness it, which he did, and subscribed his name in the testator's presence; and the testator, two hours after, told him that the paper he had subscribed was his will. His Honour held this to be a good execution.
But in the instructive case of Grayson v. Atkinson, above referred to, this point came fully under the consideration of Lord Hardwicke. The bill was to establish a will against an heir at law, who, by his answer raised the doubt, whether as all the witnesses did not see the testator sign, though he saw them all sign, this was a good attestation within the statute. The Chancellor, adverting to the argument of the counsel for the defendant, in which they had insisted, that the word 'attested superadded to 'subscribed,' imports that the attestators shall witness the very act of signing, and that the testator's acknowledging that act to have been done by him, and that it is his hand-writing, is not sufficient to enable them to attest, but that it must be an attestation of the thing itself, and not of the acknowledgment, observed," that certainly there must be an attestation of the thing in some sense, but the question was, whether, if they attest on the acknowledg. ment of the testator that that was his hand-writing, that was not an attestation of the act, and whether it was not to be construed agreeably to the rules of law and evidence, as all other attestation and signing might be proved. At the time of making that act of parliament, and ever since, if a bond or deed was executed and signed, and afterwards the witnesses were called in, and before the witnesses, the
person making it, acknowledged the signature to be his hand-writing, that was always considered as an evidence of signing by the persón executing, and was an attestation of it by them,
“It is true,” said his Lordship, “there is some difference between the case of a deed and a will in this respect, because signing is not necessary to a deed, but sealing is; and I do not know that it was ever held, that acknowledging the sealing, without witnesses, has been sufficient (8). But nevertheless, that is the rule of evidence in respect to signing. If it were in the case of a note, or declaration of trust, or any other instrument not requiring the solemnities of a deed, but bare signing, if that instrument be attested by witnesses, proving that they were called in, and that the party took up the instrument, and said, that was his hand, such would be a sufficient attestation of the signing by him. That is the rule of evidence. Considering, therefore, the words of the act of parliament, it seems, that if the testator having signed the will, did, before the attestators, declare and acknowledge he had so done, and that the signature was his hand, that might be sufficient to make the attestation good.”
(8) But see Grellier v. Neale and others, Peake, Ni. Pr. Ca. 146. See also Parke v. Mears, 2 Bos, et Pull, 217
The case of Ellis v. Smith ?, came on in 1754, which was about two years after Grayson v. Atkinson, and here the Lord Chancellor Hardwicke was assisted by Sir John Strange, Master of the Rolls, Willes Chief Justice of B. R. and Parker Chief Baron. The form in which the question is reported to have been put, was, whether a testator's declaration before three witnesses, that it was his will, was equivalent to signing it before them, and constituted a good will within the 5th section. The determination of Grayson v. Atkinson by Lord Hardwicke, was in this case mentioned by the Master of the Rolls, as an authority full to the point upon the first question ; and his Honour said, that to determine otherwise at that time, would introduce confusion and uncertainty, and sap the foundation of much property which rested on former decrees,
The court was unanimous, in holding such acknowledgment by a testator to the attestators of his will, to be good within the statute ; and the Chief Justice declared, that his opinion was virtually supported by those cases which had decided the attestation and subscription of the witnesses at different times to be good, for then, a testator is presumed to write his name only before one, and to acknowledge it to be his hand to the remaining two; and why should not
not his acknowledgment to the three be equally good ? The Chancellor also observed
P 1 Vez. jun. 11.
that those cases supported the one before him from their direct similitude, and not from any consequential reasoning ; for he apprehended, that the determination in all those cases was grounded on this, that a declaration by the testator was good ; for if he signed three times, there were three executions, and none could be good within the statute (9).
The late case of Addy v. Grix', shews it to be the present sense of the courts, that this point is settled. The bill was filed to carry into execution a devise of real estate in trust to be sold. One of the witnesses, by his depositions, stated, that he did not see the testator execute, but that the testator took the will in his hand, and said the will, and also his name, were of his hand-writing. The Master of the Rolls, without difficulty, admitted the sufficiency of the attestation.
I 8 Vez. jun. 504.
(9) The reporter has added a note, wherein he questions the propriety of this dictum of Lord Hardwicke, which had first fallen from the Lord Chief Justice ; observing that it was hard to say that such declaration or acknowledgment would be sufficient in any case where actual signing would not do. But it is to be observed, that the acknowledgment or declaration is not supposed to stand in the place of, or be equivalent to a distinct act of signing, but to give effect to the attestation of the act of signing already done.
Formality of Publication.
THE acknowledgment of the signing to the three subscribing witnesses, seems, according to the principles on which many cases have been decided, to comprize the efficacy of what the law means to express by the publication of the will; the manner of effectuating which, was often a judicial question before the statute of frauds. The term itself, publication, seems never to have borne any very precise or appropriate meaning, or to have indicated any certain and fixed form. After the statute of wills had established the direct testamentary power, accompanied with the obligation of declaring the will by writing, these parliamentary wills were thought to require a very slight degree of formal publication, superadded to the solemnity and durability of writing; and the cases shew, that, before the statute of frauds, very little, if any, verbal formality was thought necessary to accompany the written declaration.
Thus, a very few years before the statute of Charles was enacted, it was resolved, in the King's Bench, by the whole court, on a trial at bar, in an issue out of Chancery, Ist, that if a man draws up his own