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should be an actual willing. 2. That this desire ought to be expressed in some short space of time after the devise, so that it may be regarded as one continual act; for if the devise be made at one time, and at another time the devisor sends for a person to write his will, a new declaration will be necessary to make it effectual. 3. That an actual desire of the husband that K. were there to write his will, was a sufficient ground for the wife to send for him, though the devisor gave no express directions to do it. 4. That the writing the will from the mouth of witnesses was sufficient, and it need not be from the mouth of the testator. 5. If witnesses agree as to the devise for life, the will stands good for that, though they disagree as to the limitation of the remainders. 6. Though the devisor becomes senseless before the will be written, yet, if it be written before he dies, it is a good will in writing. 7. If a will continue in writing at the time of the death of the testator, though it be lost or burned afterwards, it stands good; but if it be burned at the time of his death, then the devise is void. The next day the jury gave a verdict against the will, because the evidence was not clear as to the testator's desire to send for K. There was a motion for a new trial, upon pretence of partiality in some of the jurors, but the motion did not succeed.

The case of Stephens v. Gerrard, has been said to have given rise to the clause respecting the signature and attestation of wills in the statute of frauds.

Sid. 315. 2 Kebl. 128.

These loose constructions of the

statute of wills

called for the

formal restraints imposed by the 5th and 6th sec

tions of the statute of frauds.

མ བ

Some loose sheets of paper were there produced as the will of Sir Edward Worsley, and a title was set up under them in favour of his natural daughter: they were written by one Baynham, an attorney of Gray's Inn. Sir Edward had not signed them, and there was no evidence offered to prove them published, but that of Baynham; whose evidence, according to Siderfin, made it appear, that Sir Edward had dictated a writing made by him, and had caused it to be interlined, and had said that he intended to write it over again himself, but that in the mean time what was written should be his will, though he refused at that time to sign and pubTish it as such; and the conclusion of it as it stood was as follows," in witness whereof I have put my hand and seal to every sheet," but in fact his hand and seal were not put to any one sheet; the court, nevertheless held this to be a sufficient will, and so the jury found it.

These loose constructions of the statute of wills, which afforded such facilities to designing persons of practising upon the weakness of men on the bed of sickness, or of forging testaments and supporting them by perjury, when the lips of the party were closed for ever, induced the legislature to interpose some additional guards for the protection of these last and most interesting dispositions of property. By the statute of 29 Car. 2. c. 3. it was, therefore, enacted, that "all devises and bequests of any lands or tenements, devisable either by force of the statute of wills, or by that statute or by force

of the custom of Kent, or the custom of any borough, or any other particular custom, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect."

It was an advan

tage of the writ

contents might

from the wit

It is considered by Swinburn among the advantages of a written testament, that the testator ten will that the has thereby an opportunity of concealing the con- be concealed tents from the witnesses, which he cannot do when nesses. he makes a nuncupative testament. For, says he, (after enumerating many of the motives which may rationally influence the testator to keep those in expectancy ignorant of his last dispositions,) in these and the like cases, after the testator has written his will with his own hand, or procured some other to write the same, he may close up the writing without making the witnesses privy to the contents thereof; and showing the same to the witnesses, he may say unto them this is my last will and testament, or herein is contained my last will, and this is sufficient.

Nor, continues he, is the instrument the less available, because the witnesses do not know what is contained in the same, in case the witnesses be able to prove the identity of the writing; that is to say, that the will produced, is the very same writing which the testator in his life

This advantage

exists equally

of Charles.

time affirmed before them, to be his will: other-
wise, the will can have no effect through defect
of sufficient proof. The same writer, therefore,
recommends, lest the will should fail for want
of sufficient proof,
proof, when the testator would

not have the

contents known, that the witnesses should write their names on the back, or on some part of the testament, or use some other means that might enable them to depose and testify undoubtingly, that the same is the very writing itself, which the testator affirmed to be his will ".

What Swinburn here recommends in practice, beunder the statute came soon afterwards the law of the land, by the wise enactments of the statute of 29 Car. II. which, while it gave to the declaration of a man's last will the solemn notoriety of a triple attestation, preserved to testators all the advantages of the written form; for though by the statute of Charles, the three witnesses must sign in the presence of the testator, it is no more necessary for them than for the witnesses who were voluntarily called in by a testator, the instrument in writing, under the statute of Henry the Eighth, to be privy to the contents of the instrument,

In Peate v. Ougley', which was after the statute of - Charles, a testator produced to the witnesses a paper folded up, and desired them to set their hands to it as witnesses, which they all did in his presence, but they did not see any of the writing, nor did he

Swinb. on Test. part 1. sect. 11. God. O. L. 66. i Com. 197.

tell them it was his will, or express what it was: but it was all written with the testator's own hand. It was objected, that this was not a good execution of the will within the statute; for that it was not enough that the witnesses wrote their names, they ought to attest the signing by the testator, or at least the publication of the will; but that the testator neither signed the will in their presence, nor declared it to be his last will before them. On the other side it was insisted, that the execution was sufficient within the statute; for that there was no necessity for the witnesses to see the testator write his name; and, if he wrote these words, signed, sealed, and published as his will, and desired the witnesses to subscribe their names to that, it was a sufficient publication of his will, though the witnesses did not hear him declare it to be his will. And Trevor J. inclined, that there was sufficient evidence of the execution.


But the case of Trimmer v. Jackson went further, for there the witnesses were so far removed from a knowledge of the contents, that they were actually deceived as to the nature and purpose of the instrument, which they were led to believe, from the words used by the testator at the time of the execution, was a deed and not a will. It was delivered as his act and deed; and the words sealed and delivered' were put above the place where the witnesses were to subscribe their names; and in consideration,


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Cited by Denison J. in Wallis v. Wallis, 4 Burn. Eccl. L. 127.

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