The Sun.
London, England, 1855-01-31 00:00:00

Rosixsoir AND WIPE I'. PHILLIPS AND ANOTHER-.

ATTESTATION OF WILLS.— IMPORTANT DECISION.
Lord Campbell, in delivering the judgment of the
court in this case, said that the plaintiffs claimed posses-
sion of a house and garden under the will of William
Turner deceased, and the only question was whether
the will had been duly subscribed by the three
attesting witnesses. The ease came under the statute
of frauds. There had been no objection as to two
of the witnesses, but there had been a serious diffi-
culty as to the third. It was proved at the trial that
one of the witnesses—the witness whose attestation was
objected to—William Bevan, had been sent for by the
testator to attest his will, and that he signed his
name at the same table as the other two wit-
nesses. The learned judge at the trial desired the jury
to say whether he saw the will executed by the testator,
and signed by the other subscribing witnesses, and whe-
ther he signed it at the same time as the other subscrib-
ing witnesses. On the finding of the jury, the learned
judge directed a verdict to be entered for the defendants,
who claimed under the heir-at-law, reserving to the plain-
tiffs leave to more this court on the point of law. The
first objection taken during the arguments was that there
was nothing to show that William Bevan was a subscrib-
ing witness. The court thought that objection could not
hold good. A more important objection was, that from
the place in which his name appeared it could not be
considered that the will had been subscribed by him
within the meaning of the statute. William Bevan had
signed on one side of the will, and the other two wit-
nesses on the other side, under the testator's name. It
was most remarkable that there was no case in the books
from which it appeared it had been decided where the
subscribing witnesses were to sign a will. The statute
did not point out where a will should be signed. It was
difficult to conceive that the legislature intended that
subscribing witnesses should sign their names at the bot-
tom of the will, and that the testator should sign at the
top. The Court was now called upon in thia most im-
portant case, to put for the first time a construction on
the new Wills Act of William IV., which enacted that
the signature of the testator should be signed in the pre-
sence of two witnesses, who should subscribe their names
in the presence of the testator ; but neither in that nor
in the amended act of the 15th of Victoria was any
place indicated where the will was to be signed by the
attesting witnesses. When satisfactory proof had been
given that the witnesses had been called in by the tes-
tator to see the proper execution of the will, was the
court to hold that the will was to be void because the
name of an attesting witness was not signed under-
neath that of the testator ? If the word subscriber were
taken in its strict term, it would be a perfect nullity,
but there were many authorities for a less strict
acceptation of the term. Suppose a will were drawn out
on four pages, and the testator in the disposition of his
property occupied three pages, and the witnesses signed
at the top of the fourth page, would the will be properly
attested, though they did not sign under the name of the
testator I Could it in such a case be intended by the
legislature that the will should be void. Then, again,
supposing that the will filled four pages, and a margin
was left, and there was a regular testimonial clause on
the fourth, or the first, second, or third pages, and the
witnesses signed that testimonial clause, was a will
so signed to be nullified Was any difference to be
made whether the testimonial clause was on the margin
or any other part of the four pages of the will In none
of these cares the witnesses could have subscribed their
names literally and strictly, but there was a difficulty in
holding that the will would be void if the witnesses sub-
scribed the testimonial clause under the signature of the
testator ; and if so there was a difficulty in saying i.
was void if they signed their names under any part of
the same paper. Clear and satisfactory proof must in
all cases be required that the witnesses had been re-
quested by the testator to sign his will, and that they
did sign it in his presence. The court was of opinice
that a will was valid, though the signatures of the wit-
nesses were not under the signature of the testator. The
court did not overlook the danger of the result of their
decision, but it would not be attended with such danger
as the decision that a will written on several sheets of
paper with but one signature of the testator would be
sufficient. And it was also to be recollected that frau-
dulent wills were for the most part prepared in the most
formal manner. Every presumption should be made by
a jury in favour of a will, where there was no doubt of
the testator's intention. If the legislature in its wisdom
thought that the signature of the witnesses should be
placed on the same footing under the testator's name they
should say so in express terms, and they would venture
to express a hope that when the proposed change was
effected it would be rnore felicitous than it had been
by the Act of Victoria. They had now, however, only
to express an opinion in this case, and they held that
under the statute of frauds the will had been properly
executed, and therefore judgment must be for the
plaintiffs.
Judgment accordingly.