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And by a constitution of archbishop Stratford, the executor, at the time of proving the will, shall give security (if need be) to render a just account of his administration, when duly thereunto required by the ordinary. Lind. 177.
As to the form and manner of making an executor in the will, it is not always necessary to express this word executor, neither hath every testator skill so to do; but it is sufficient, if the testator's meaning do appear by other words of like sense or import: as, if the testator say, I commit all my goods to the disposition of A. B.; or, I leave all my goods, or the residue of all my goods to A. B., or the like; for in these cases, he to whom all the residue is bequeathed, is thereby understood to be made
executor. Svin. 247. (8) Super
10. Overseers of a will have no power to intermeddle, otherwise than by counsel and advice, or by complaining in the spiritual court. Went. 9, 10.
Sir Thomas Ridley takes occasion to wish, that they might be made of more use; although at present (he says) they be looked upon only as candle holders; having no power to do any thing but hold the candle, while the executors tell the deceased's money.
Ridley, Part 4. Ch. 2. Attesting 11. If the testator shew the will unto the witnesses, saying, tion of the
ch. This is my last will and testament; or, Herein is contained my will. (d) last will; this is sufficient without making the witnesses privy to [ 127 ] the contents thereof, provided the witnesses be able to prove the
identity of the writing, that is to say, that the writing now shewed is the very same writing which the testator in his lifetime affirmed before them to be his will, or to contain his last will and testament. Swin. 52. God. O. L. 66.
Whether it is necessary, that the testator should declare to the witnesses, at the time of the attestation, that the writing which they attest is his will, hath been matter of some doubt. As in the case of Wallis and Wallis, T. 1762. Thomas Wallis, esquire, made his will, and therein devised his real estate to his wife for life; the will was of his own handwriting; and the form of attestation was in these words, signed, sealed, published, and declared for the last will and testament of the said Thomas Wallis, in the presence of us, &c. Isabella Matthews, James Wardell, William Powell. The heir at law brought an ejectment. The
| Ch. C. 121. The King v. Raines, 1 Salk. 299. 1 Ventr. 335.] Whether the spiritual court can exact security, vide in fra, Probate, 19.
(8) An executor may be appointed in conjunction with others; but in the latter case they are all considered by the law in the light of an individual person. 3 Bac. Ab. 30. Off. Ex. 95.
(d) See farther on this head, supra, I.
widow pleaded the devise to her for life. The cause came on to be heard at the summer assizes at Lincoln, 1762, by a special jury, before Mr. Justice Denison. To prove the execution of the will, the defendant produced William Powell, the testator's coachman, one of the three subscribing witnesses, who deposed, that in the beginning of July 1760, James Wardell, then butler to the said Thomas Wallis, came and told him the said Powell, that he was to come to his master; that upon entering the room, he found his master sitting with a table before him, on which were some papers open ; and that his master called him, and the said Wardell, and one Isabella Matthews, then his housekeeper, up to the table to him; where they all came. Then the said Thomas Wallis, further addressing, himself to them all, desired them to take notice; and then took a pen, and in all their presence signed and sealed each part of his will, and laid both the said parts open and unfolded before them to subscribe their names as witnesses thereto; which they all did, by the direction of the said Thomas Wallis in his presence, and in the presence of each other; he shewing them severally where to write their names. But that the said Thomas Wallis, otherwise than as above, did not declare or publish either part to be his will, or say what it was. The counsel for the plaintiff contended that this was not a sufficient proof by one witness, of a complete execution of the will. And they produced on the other hand, the other two subscribing witnesses; who in divers particulars did not give a clear and distinct evidence; and could not recol- [ 128 ] lect whether they had signed one or two papers; or whether then, or at any time before the said Thomas Wallis's death, they understood what they had so witnessed to be the said Thomas Wallis's will, though Wardell seemed to admit he conjectured it to be so. But both Wardell and Matthews swore that they did not see the said Thomas Wallis sign or seal either part of his said will; that Powell, the other subscribing witness, was not at that time in the room, when (at the said Thomas Wallis's desire) they wrote their names to the two papers as they now appear ; that the said Thomas Wallis did not declare or publish it as his will, nor did they know it to be a will. The defendant's counsel. then called Richard Price, the said Thomas Wallis's groom, who swore, that one morning in the beginning of July 1760, James Wardell told him that his master had much wanted him; and that upon his the said Price's offering to go to his master to receive his orders, the said Wardell told Price that the business was done, and that Powell had supplied his place; and that he the said William Powell, James Wardell, and Isabella Matthews had that morning been witnessing their master's will. And Sarah Dixon being called, swore, that in the beginning of July 1760, Isabella Matthews came one morning after breakfast
into the kitchen, and told her that she the said Matthews, James Wardell, and William Powell, had that morning witnessed their master's the said Thomas Wallis's will, though he had not told them it was so. Upon this state of the evidence on both sides, it was insisted for the plaintiff, that as the law stood before the statute of frauds, publication of a will was an essential part thereof; and if so, there is nothing in that statute to take it away : And further it was insisted, that by the said statute there are four requisites to constitute a good and valid devise of lands: 1. That it shall be in writing. 2. That it shall be signed by the party devising, or by some other person in his presence, and by his express directions. 3. That it shall be attested and subscribed in the presence of the devisor by three or four credible witnesses. 4. That the words attested and subscribed must import that it shall be published as a devise or will by the testator in the presence of the said witnesses. On the contrary, for the defendant it was insisted, that neither before nor since the statute publication was necessary; and that by the statute,
only the three first requisites are necessary, which in the present [ 129] case were all complied with, the devise being in writing, and
signed by the testator in the presence of three credible witnesses, who had subscribed their names as witnesses to the same in the presence of the testator and of each other; and further, supposing any such publication was necessary, that the testator had used words and done acts which amounted to a publication within the meaning of the statute, which had not directed or prescribed any particular form or manner in which such publication should be made; that the testator using these significant words to all the witnesses when he called them up to the table “ take notice," and then signing both parts of his will, and then delivering both the parts thereof to the witnesses to attest, directing them where to sign their names, and to witness each part under the common and usual form of attestation, which the witnesses did, was a sufficient execution and publication of his will; that the words “ signed, sealed, published, and declared,” being all written in the testator's own handwriting, and the witness Powell swearing that both the parts of the will lay open to the inspection of all the witnesses when they subscribed their names, and it appearing by the evidence of Price and Dixon that both the other witnesses had declared that they had been attesting the said Thomas Wallis's will, this was much stronger than the case of Peate and Ougley, reported in Comyns, 197. And Mr. Justice Denison was of opinion, if the witnesses for the defendant were credited by the jury, that this was a due execution within the statute, and a sufficient publication; and for this cited the case of Trimmer and Jackson lately determined in the court of king's bench. And the jury found accordingly a ver
dict for Mrs. Wallis the defendant. Nevertheless, the plaintiff's counsel insisted, that the point, whether a good publication or not, should be reserved for a case to be argued above. — But the matter was compromised, on the defendant's remitting the costs.
Note: The case of Peate and Ougley was, where the 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 tell them it was his will, or say what it was; but it was all written by the testator's own hand. It was objected, that this was not a good execution of the will within the statute; for it is not sufficient that the witnesses write their names in the presence of the testator, without any thing more; but they must attest every thing, to wit, the signing of the testator, or at least the publication of his will : But here the testator neither signed the [ 130 1 will in their presence, nor declared it to be his last will before them. On the other part, it was insisted, that the execution was sufficient within the statute; for there is no necessity that the witnesses see the testator write his name; and if he writes these words, signed, sealed, and published as his will, and prays the witnesses to subscribe their names to that, it will be a sufficient publication of his will, though the witnesses do not hear him declare it to be his will. And Trevor chief justice inclined, that here was sufficient evidence of the execution, and the jury found it accordingly. But as to the matter of law, he permitted it to be found special. And it doth not appear further what became of it.
The case of Trimmer and Jackson was, where the witnesses were deceived by the testator at the time of the execution, and were led to believe from the words used by the testator at the execution of the instrument that it 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 it was adjudged by the court, as it is said, for the inconveniences that might arise in families, from having it known that a person had made his will, that this was a sufficient execution. (e)
12. The intention of the testator is called by lord Coke the Wills to be pole star, to guide the judges in the exposition of wills.
favourably. In Rivers's case, M. 1737. The testator by his will gave certain lands to his two sons, James and Charles Rivers. It appeared that they were illegitimate children; and the question was, whether this is such a description of their persons as will
(e) See also lord Hardwicke's opinion in Rigden v. Valier, 2 Ves. 252. ; et infra, 18.
intitle them to take under the will. By lord Hardwicke : In the case of a devise, any thing that amounts to a designatio persona is sufficient; and though in strictness they are not his sons, yet if they have acquired that name by reputation, in common expression they are to be considered as such : It hath been objected also, that the testator hath made a mistake in their names, and that therefore they cannot take; but the law is otherwise; for if a man is mistaken in a devise, yet if a person is clearly made
out by averment to be the person meant, and there can be no [ 131 ] other to whom it may be applied, the devise to him is good.
1 Atkyns, 410. (g)
But although by the law the intention is more to be considered than the words; yet such intention must be collected out of the words, and it must consist with the law. Swin. 10. (h)
" Bas (g) Under a devise to “ children, generally," it was held that an
illegitimate child was not entitled to share, notwithstanding a strong shall implication upon the will in favour of the child. Cartwright v. Vartake and
dry, 5 Ves. 530. Godfrey v. Davis, 6 Ves. 43. [But it is otherwise if not take as “ chil. proved by the will itself to be so intended; but extrinsic evidence can dren.”]
only be received for the purpose of collecting who had acquired the reputation of children. Swaine v. Kinnerley, 1V. & B. 469. Bastards cannot take as children of any particular person, till they gain names by reputation. That reputation begins with their births. Therefore, a bequest to all the natural children of J. S. extends not to bastards born after the making the will, nor to a child en ventre sa mere. Meetham v. Duke of Devon, 1 P. Wms. 529, 530. Arnold v. Preston, 18 Ves. R. 288. Earle v. Wilson, 17 Ves. 531. Wilkinson v. Adam, 1 Ves. & B. 422. 452. 466. And this rule applies, though the bequest was to be paid as testator should by deed appoint; for his appointment referring to the will was held to be a codicil only. Meetham v. Duke of Devon. But a bastard may take by purchase, if sufficiently described, and if he has acquired the reputation of being the child of that person. Wilkinson v. Adam. A legacy to “ the children of the late C. who shall be living at the testator's death,” extends to illegitimate children then living, where C. had no legitimate children. And it was also held, that where there were not nor ever can be any persons strictly answering the description of “ children," it is necessary to resort to evidence dehors the will, to discover whether there were any who had acquired the reputation of children; for it is possible that illegitimate children may acquire that reputation. Woodhouselee v. Dalrymple, E. 1817, 2 Meriv. R. 419.; see notes, p. 148. and 166.
. (h) A will cannot be varied upon the ground of mistake, unless the alleged mistake be clearly inconsistent with the intention upon the whole will. Mellish v. Mellish, 4 Ves. 45. Where such mistake does appear, the court will correct it. Phillips v. Chamberlain, 4 Ves. 51. If two parts of a will be totally irreconcilable, the latter overrules the former. Sims v. Doughty, 5 Ves. 243. [But Mr. Bridgman observes, that this rule, though adopted from necessity, is not satis