Humphrey, for the defendants: VINCENT v. OF SODOR [ *919 ] By the terms of this power, it is the will only that is required THE BISHOP to be attested. The case of Burdett v. Doe d. Spilsbury is almost identical with the present; the only difference being, that, here, the will was not required to be sealed. MAULE, J., there says: "The will, on the face of it, professes to be signed, sealed, and published. Considering this case independently of authority, I could feel no doubt that the will was a good execution of the power, inasmuch as it is signed, sealed, and published in the presence of, and attested by, three witnesses, which are all the *conditions imposed by the instrument conferring the power; for, I cannot doubt that the substantive to which the participle "attested" is to be referred, is, the will, which is mentioned, not signature, execution, &c., which are not mentioned." In Wright v. Wakeford, the consent was to be testified by writing under hand and seal, and the deed was only sealed and delivered. In Doe d. Mansfield v. Peach, the power was to be exercised by writing under hand and seal, to be duly executed in the presence of, and attested by, two witnesses; and the attestation stated only that the deed was sealed and delivered in the presence of the witnesses. In Wright v. Barlow, the language of the power, and the attestation, were the same as in Doe d. Mansfield v. Peach. In Doe d. Hotchkiss v. Pierce, the power was to be exercised by deed or writing under the donee's hand and seal, and attested by two or more credible witnesses; and it was held to be ill pursued by a will apparently under the donee's hand and seal, which seal an attesting witness believed was affixed before execution and attestation, the attestation not noticing the sealing as well as the signing. There was the omission of a specific ceremony in that case. In Moodie v. Reid, the attestation was general, nothing being mentioned except signing. In Stanhope v. Keir, there was no evidence of the execution: and that case is clearly not consistent with Burdett v. Doe d. Spilsbury. In Hougham v. Sandys (1), the power was to be exercised by the donee, by any writing under her hand and seal, attested by one, two, or more credible witnesses, and the deed was signed and sealed, but the attestation contained the words sealed and delivered only; and the VICE-CHANCELLOR (Sir L. SHADWELL) held the power not to be well executed. That, therefore, was precisely *like the case of Wright v. Wakeford. In Buller v. Burt, the words of the power were, "by any deed signed and delivered in the presence of and attested (1) 2 Sim. 95. [ *920 ]1 VINCENT v. THE BISHOP [*921] 66 by two or more credible witnesses;" and a deed thus attestedSigned and sealed at &c. A. B., C. D.,"—was held not to be a due execution of the power. In Waterman v. Smith (1), a power given to a husband and wife, was to be exercised by them, by any deed or writing under their hands and seals, to be by them executed in the presence of and attested by two witnesses; and it was held that a deed which was signed as well as sealed and delivered by the husband and wife in the presence of two witnesses, was not a good execution of the power, because the attestation clause did not extend to the signature as well as to the sealing and delivery, Sir L. SHADWELL, V.-C., observing that the case was not distinguishable from Wright v. Barlow. In Simeon v. Simeon, a power over personal property, was required to be executed by a will signed and published in the presence of, and attested by, two witnesses: the donee professed to execute the power, by a will which was signed by her, and she acknowledged her signature to the two witnesses, but did not sign the will in their presence, and the witnesses, at different times, signed an attestation that the testatrix had signed and delivered the will in their presence: and it was held, that, though delivery was equivalent to publication, the power was not well executed. In Ward v. Swift, premises were conveyed to A. and his wife, after other uses, to such uses as M. S., by her last will and testament in writing, or any instrument in writing in the nature of, or purporting to be, her will, or by any codicil to be by her duly executed and published under her hand and seal, in the presence of, and attested by, three or more credible *witnesses, notwithstanding her coverture, &c., should direct, limit, or appoint, &c.: M. S. signed, sealed, and delivered, as and for her last will and testament, an instrument which concluded and was attested as follows: "In witness whereof, I have set my hand and seal hereto, this 5th day of August, 1801, in the presence of the underwritten: Signed, sealed, and delivered this 5th day of August, 1801, as the last will and testament of the said testatrix, M. S., who, in her presence, and the presence of each other, have put our names as witnesses thereof. H. F., J. G., R. F.:" and it was held that the power was well executed. Lempriere v. Valpy turned upon a different point: but the VICE-CHANCELLOR (Sir L. SHADWELL), adverting to Moodie v. Reid and the cases there cited, says: "But, even admitting those cases to be law, it appeared, by the evidence in this cause, as well as by the written attestation, (1) 9 Sim. 629. VINCENT v. OF SODOR [ *922 ] that the will was produced and delivered by Mrs. Lempriere. In Moodie v. Reid, Lord Chief Justice GIBBS says: "If the act of the THE BISHOP testatrix, in calling on the witnesses to attest her will, be a publication of it, then their attesting that she signed it, attests her publication also; because they attest that by which she publishes it.' His Lordship also says, 'I do not know what the publication of a will is. I can only suppose it to be that by which a person designates that he means to give effect to a paper as his will.' And, consistently with what the LORD CHIEF JUSTICE is reported to have said, my opinion is, that the will in this case, by having been first signed and then delivered to the witnesses by Mrs. Lempriere, in order that they might attest it, has been duly signed and published by her, within the terms of the power." What substantial difference is there between signing and sealing, and delivery? Delivery is not essential in the case of a will. Here, the testatrix seals the will, as an additional ceremony, to show that her mind is complete; and the witnesses attest that this was done in their presence. If delivery, which is no part of a will, is an attestation of the publication, why should not sealing be so? especially where sealing is not required by the terms of the power? Mackinley v. Sison, which was a decision by the same learned Judge who decided Hougham v. Sandys, Simeon v. Simeon, Lempriere v. Valpy, and Waterman v. Smith, is a distinct authority to show that this power was well executed. There, the power was to be executed by deed, or by will signed and published in the presence of, and attested by, two witnesses; and its execution was by will which was expressed to be signed and sealed only, and attested by three witnesses. His Honour says: "The father's will requires that the power shall be exercised by his daughter, either by a deed or instrument in writing to be by her sealed and delivered in the presence of, and to be attested by, two or more witnesses, or by her last will and testament in writing, or any writing purporting to be, or being in the nature of, her last will and testament, to be by her signed and published in the presence of, and to be attested by, the like number of witnesses. Now, I find no legal definition or explanation of the meaning of the term 'publication,' and therefore, if it appears that a testatrix has produced her will to witnesses, and has signed and sealed it in their presence, and they have attested that she has done so, I must take it that she has published the document in their presence.' The language of the power in that case is almost identical with that of this power. In VINCENT OF SODOR AND MAN. [ *923 ] M'Queen v. Farquhar (1), where the power was to be executed by THE BISHOP deed, to be signed and sealed in the presence of witnesses, and the attestation was only of sealing and delivery, though the deed purported to be signed, sealed, and executed, it was presumed that the signature was in the presence of the witnesses. Here, it was proved that the will was signed and sealed and delivered by the testatrix as and for her last will; and the 13th section of the 7 Will. IV. & 1 Vict. c. 26, is a legislative declaration that this amounts to a publication. In Curteis v. Kenrick (2), it was held that delivery is equivalent to publication of a will. There, a married woman had power, under her marriage settlement, to appoint certain lands to uses, by her last will and testament, "signed and published in the presence of, and attested by, three or more credible witnesses: " she made a will, containing a devise of all her property real and personal, but not referring to the power: the attestation clause stated the will to be signed, sealed, and delivered by the testatrix in the presence of three witnesses whose names were subscribed: and it was held that the power was well executed. It being suggested by counsel in that case that "it is impossible to define what the mere delivery of a will is," PARKE, B., answers, "Something whereby the party acknowledges that the instrument is a complete act containing his final mind-that it is no longer ambulatory." Sealing is surely a more solemn act of the same character. In stating the grounds of the decision in that case, Lord ABINGER says (3): "The law has given no definition of the meaning of the word 'published,' when applied to a will. It certainly cannot mean that the whole contents of the will should be made known to the witnesses. If it mean any thing less than that, there is no reason why delivery should not be publication. Delivery is a publication to those who are present, of the completion of the instrument, the signing and delivery of which they are called upon to attest. If this case, therefore, were original, we should be disposed to think that delivery was equivalent to publication. But there is sufficient authority to be found for this opinion: first, that of Lord Chief Justice GIBBS, in Moodie v. Reid; next, that of the VICE-CHANCELLOR, in the case of Simeon v. Simeon, and also in the case of Lempriere v. Valpy; and last, though not least, that of Lord LYNDHURST, and the other members of this Court, in Ward v. Swift." Bartholomew v. Harris is also an (3) 3 M. & W. 472. [ *924 ] (1) 8 R. R. 212 (11 Ves. 467). VINCENT OF SODOR AND MAN. [ *925] authority to show that here the power was well executed. The view now suggested is strengthened by the cases as to publication THE BISHOP of awards. In Brooke v. Mitchell (1), where an order of reference required that the arbitrator should make and publish his award in writing, ready to be delivered to the parties, or such of them as should require the same, on or before a certain day, it was held, that the award was "published," and "ready to be delivered," within the meaning of the order, when it was executed by the arbitrator in the presence of, and attested by, a witness. Miller v. Brown (2), shows the expansive signification of publication. There, a widow having, after the death of her husband, delivered a will, made during coverture, to her executor, for safe custody, it was held that such delivery, coupled with other recognitions, amounted to a republication, rendering it a new will, of which the executors were entitled to a general probate. Publication is the result of those acts which the law, or the power, requires for the due execution of the will. In White v. The Trustees of the British Museum (3), it was held that a will of lands subscribed by three witnesses, *in the presence, and at the request, of the testator, was sufficiently attested, within the Statute of Frauds, although none of the witnesses saw the testator's signature, and only one of them knew what the paper was. TINDAL, Ch. J., delivering the judgment of the COURT, saying, "When we find the testator knew this instrument to be his will; that he produced it to the three persons, and asked them to sign the same; that he intended them to sign it as witnesses; that they subscribed their names in his presence, and returned the same identical instrument to him; we think the testator did acknowledge, in fact, though not in words, to the three witnesses, that the will was his." In Warren v. Postlethwaite (4), a married woman, having power under her marriage-settlement, to dispose of personal estate by a will to be signed and published by her in the presence of two or more credible witnesses, made her will, in pursuance of the power, and signed her name at the foot of it: then followed the signature of three witnesses; and, below those signatures was a memorandum in the handwriting of the testatrix, to the effect that the will had been signed and sealed by her in the presence of the above three witnesses. Upon the examination of the witnesses, after the death of the testatrix, two of them deposed to the testatrix having signed the will in the presence of all the (1) 55 R. R. 699 (6 M. & W. 473). (2) 2 Hagg. Eccl. R. 209. (3) 6 Bing. 310; 3 Moo. & P. 689. |