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same room with the testator, was not on this account a sufficient attestation, so neither would such subscription in the same room suffice, if the percipience and intelligence of the testator were gone so as to constitute it an act done without his knowledge. On this principle was founded the decision of Right v. Prices, in which case, the form of an attestation was written on the second sheet, and they put their names to it in the room where the testator lay, but he was in a state of insensibility. And the question was, whether this will was duly executed for passing lands according to the statute of frauds ?

In support of the will it was argued, that insensibility was something short of death, and if the testator was alive, it could not be said that the will was not attested in his presence. That the question was, whether the testator, having done all that was necessary on his part, and the attestation having been made according to the words of the statute, a fair transaction should be set aside, because a formality required, according to an implied intention of the legislature, has not been complied with; that it did not appear but that the testator migbt, by possibility, have opened his eyes, while the witnesses were subscribing their names; which, according to the law as laid down in Shires and Glascock, would have been sufficient.

Doug. 241.

But the court said, that they would lean in support of a fair will, and not defeat it for a slip in form, where the meaning of the statute had been complied with; this was the principle of Shires and Glascock's case, and other cases of that sort. But the case then before the court was not one where there was a measuring cast and room for presumption. All the witnesses knew, at the time of the attestation, that the testator was insensible. He was a log, and totally absent to all mental qualities. That it was usual, in precedents of wills, to say, that the witnesses subscribed at the request of the testator; that indeed was not expressly required by the statute, but the practice shewed the general understanding, and that the nature of the thing implied a request. The attestation in the testator's presence was as essential as his signature, and all must be done while he was in a capacity to dispose of his property. In this case, the testator could not know whether the will that he had begun to sigu was that which the witnesses attested; he was dead to all purposes or power veying his property.

of con

ing witness to

It seems not to have been judicially decided, Whether an ac

knowledgment whether an acknowledgment by a subscribing wit- by the subscribness to the testator of his hand-writing to the attesta- the testator tion, would be sufficient. In the case of Risley v. cient. Temple", the facts were, that the testator lying sick in bed, made his will, and signed, sealed, and pub

would be suffi.

.

Skin. 107.

lished it, in the presence of three witnesses, but being tired ordered them to go and subscribe it in another room. They went into another room, out of the presence and sight of the testator, and subscribed their names, and then returned and owned their names to the testator, who looked upon the will, and said, 'they have done well.' But this point was not spoken to in the case according to the report.

It seems very plain, however, that to hold such an acknowledgment sufficients would be in direct opposition to the words of the statute, which, though it does not by the 5th section require the signature of the testator himself to be in the presence of the witnesses, does yet expressly direct the subscription of the witnesses to be in the testator's presence; and therefore, this part of the ceremonial seems plainly inconsistent with the construction which has been applied to the act of the testator himself. And it seems little to be doubted, but that, agreeably to the greater regard for the words of the statute, which now seems to prevail in our courts of justice, such an acknowledgment by a subscribing witness, of his hand-writing to the attestation, made to the testator, after making the subscription out of his sight and presence, would be deemed an insufficient compliance with the statute.

It has been shewn, that a testator may write, and scribe at difter- we shall now make it appear from the authorities, that he may publish, his will at different times, or, in other words, that an attestation made by the witnesses respectively at three different times, if in the presence of the testator, satisfies the law (2). The two leading cases to establish this point are,

That the wit. nesses may sub

ent times.

(2) It may be interesting to compare our own with the civil law upon this article. In an early period of the Roman jurisprudence, it was held, that a testament ought to be made uno contextu, without any foreign act intervening, and the witnesses were likewise required to attest, without separating, or even discontinuing the act of subscribing, till all was complete. And, indeed, it does not seem that the witnesses were ever released from the necessity of subscribing at one time and in each other's presence. In favour however of certain unavoidable interruptions, the Emperor Justinian limited and explained the generality with which the rule had been expressed. In the Sixth Book of the Code, tit. 23. 28. the qualification of the doctrine is thus propounded: cum antiquitas testamenta fieri voluerit nullo actu interveniente, et hujusmodi verborum compositio non rite interpretata pene in perniciem, et testantium et testamentorum processerit: sancimus in tempore quo testamentum conditur, vel codicillus nascitur, vel ultima quadam dispositio secundum pristinam observationem celebratur (nihil enim ex ea penitus immutandum esse censemus), ea quidem que minime necessaria sunt, nullo procedere modo, quippe causa subtilissima proposita, ea que superflua sunt minime debent intercedere. Si quid autem necessarium evenerit ; et ipsum corpus laborantis respiciens contigerit, id est, vel victus necessarii, vel potionis oblatio, ul medicaminis datio, vel impositio, quibus relictis ipsa sanitas testatoris periclitatur, vel si quis necessarius nature usus ad depositionem superflui ponderis immineat, del testatori vel testibus, non esse ex hac causa testamentum subvertendum, licet morbus comitialis, ( quod et factum esse comperimus) uni ex testibus contigerit; sed eo, quod urget et imminet, repleto, vel deposito, iterum solita per testamenti factionem adimpleri. Et si quidem a testatore aliquid

fiat testibus paulisper separatis, cum Cook v. Parsons', and Jones v. Lakek. The first of which cases was decided upon a bill of review to reverse a decree of Lord Nottingham in 1682, for a sale of lands subjected by the will to the payment of debts; the lands were devised by the testator to trustees, and their heirs, to set and to farm let, and out of the rents (without saying profits) to pay his debts; and all his debts and legacies being first paid, he

gave the surplus to F. S.

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coram his facere aliquid naturale testator erubescat, iterum introductis consequentia factionis testamenti procedere.

The phrase " uno contextu' is not to be understood as relating to the composition of the will, (which it seems might be taken up and prosecuted at intervals, according to the necessary interruptions of business, and as the leisure of the party allowed; as was said to be the law with us, in Carleton v. Griffin, above cited) but to the mode of publishing and selemnizing the will, by the formal nuncupa. tio testamenti, or declaratio voluntatis to the witness, with the cere. monies of subscribing and sealing by them, and the signing by the testator, which ought all to be done at one time, that is to say, uno actus contextu, without the intervention of any act or business fo. reign to the purpose, which the parties were met together upon, which, unless it happened on the natural and necessary occasions alluded to in the passage

from the code above extracted, would viti. ate the testament, as being inconsistent with the solemnity of its celebration. Thus Vinnius translates • uno contextu' into the Greek by fuse ion, and adiamentows, as being applicable not to the composition of the will, but to the publication of it; which is plainly the sense of it, as it stands accompanied in the text of the institutes, “ et testes quidem eorumque presentia, uno contextu, testamenti celebrandi gratia, &c."

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