PART IV. Variance. Defence. and although the defendant is the occupier of a new house, and has used the road for the purposes of such occupation (p); for by traversing the prescription, the seisin of the defendant, as alleged, is admitted, and the right only is put in issue (q). If the plaintiff intended to deny the seisin, he ought to have traversed it; if he meant to insist that the occupation was in another, he ought to have replied the fact, admitting the seisin (r); if he intended to contest the right of the defendant to use the road as a way to the new house, he ought to have admitted the claim, and pleaded that the trespass complained of was committed extra viam (s). Unity of possession of the land to which the way is claimed as appurtenant, with the land over which the way lies, extinguishes the way; for it is an answer to the scription, and the way is against common right (t). (p) Stott v. Stott, 16 East, 343. (q) Ibid. pre (r) The Court held in the same case, on motion in arrest of judgment, that the allegation of seisin, prima facie implied occupation, unless the contrary were shown in pleading. (8) Ibid. (t) [See Gayetty v. Bethune, 14 Mass. Rep. 49. Grant v. Chase & al. 17 ib. 443. Hoffman v. Savage & al. 15 ib. 130.] 1 Roll. Ab. 935; 3 T. R. 157; 3 East, 295. Whalley v. Thomson, 1 B. & P. 371. Buckby v. Coles, 5 Taunt. 311. Claim of prescriptive right of way from the close A. over the defendant's close D. unto the village of Allesley; it appeared in evidence that the way claimed was from A. over the defendant's close B., and from thence over the defendant's close C., and from thence over the close D., and from thence into Allesley; and that the owner of the close A. had about eighteen years; being also owner of the close D., it to a stranger in fee, without reserving any right of way: and it conveyed was held that the right of way over D. was thereby extinguished, and consequently that an action did not lie against the defendant for obstructing the plaintiff's passage by putting up a gate on one of his own closes. Wright v. Rattray, 1 East, 377. In Slowman v. West, (Palm. 387; 2 Roll. R. 397), Doderidge, J. said, that if a man had a right of way from his house to church, and the close next his house over which the way leads is his own, he cannot prescribe for a right of way from his house to the church, because he cannot prescribe for a right of way over his own land. Ley, C. J. and Chamberlayne, J. differed from him; but Lord Kenyou (in Wright v. Rattray) approved of Mr. J. Doderidge's opinion, saying that he was a whole host in himself. In Jackson v. Shillito (Trin. 32 Geo. III. K. B. cited in Wright v. Rattray, 1 East, 377), the defendant in trespass quare clausum fregit, prescribed for an occupation-way from his own close, into, through and over the locus in quo to and unto a certain highway, &c. and it appeared that one of the several intervening closes was in the possession of the defendant himself; it was held by the By the enactment of the Statute of Frauds, 29 Car. II. Statute of c. 3. s. 5, all devises and bequests of any lands or tene- Frauds. ments, devisable either by the Statute of Wills (x), or by force of the custom of Kent, or the custom of * any bo- * 1682 rough, 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 direction, 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 (1). Court of C. B. (contrary to the opinion of Lord Kenyon at the trial), that it was sufficient. But there (per Lord Kenyon, 1 East, 381) the defendant had in fact a right to go the whole line of road; whereas in Wright v. Rattray he had no right to go part of the road claimed. And in Wright v. Rattray Lord Kenyon seems to have been of opinion that it would have been sufficient if the plaintiff had merely claimed a right of way over the defendant's close towards Allesley. (u) As to proof of a will of personalty, vide supra, tit. Executor, 549; for proof of a will of copyhold, vide supra, tit. Copyhold, 416. 519. Where a feme covert and her husband surrender to the use of her will, she must be examined separately (Driver v. Thomson, 4 Taunt. 295); and no special custom to that effect is necessary (Doe v. Clifford, York Sum. Ass. 1821, Cor. Bayley, J.) She ought to be examined before the steward of the Court (4 Taunt. 294; Erish v. Rives, Cro. Eliz. 717). But an examination before two tenants of the manor is good by custom. Ibid. (x) 32 Hen. 8. c. 1, explained by stat. 34 Hen. 8. c. 5. (1) [In Pennsylvania, two witnesses are required in proof of every testamentary writing, whether for the disposition of real or personal property. Lewis v. Maris, 1 Dallas, 278. But to constitute a valid will of land, it is not necessary that all the subscribing witnesses should prove the execution, nor that proof should be made by those who subscribed as witnesses, nor that the will should be subscribed by the witnesses. Hight v. Wilson, 1 Dallas, 94. Rossetter v. Simmons & ux. 6 Serg. & Rawle, 452. Where special instructions for drawing a will are proved by two witnesses, and a will is drawn conformably thereto, in the testator's life-time; though he is prevented by extreme illness from executing the same, it is a good will in writing, under an ancient statute of that State. Lessee of Walmsley v. Read, 1 Yeates, 87. See also Arndt v. Arndt, 1 Serg. & Rawle, 256. Though a will of land must regularly be proved by two witnesses, yet in Eyster & al. v. Young, 3 Yeates, 511, it was held that circumstances may supply the want of one witness, where they go directly to the immediate act of disposition. Thus, where instructions were given by the decedent to A. in the presence of B. & C., and A. made short notes of them, which were drawn out PART IV. In order, therefore, to prove a devise of lands according to the forms prescribed by the statute, it is necessary in the first place to produce the will itself, or to prove its Production of former existence and destruction, or that it is withheld by the adversary, after notice to produce it, according to the ordinary course of proving a written document (y). the will, When the will has been lost, the probate of the will in the Spiritual Court is not admissible, even as secondary evidence of the contents (z), without proof aliunde that it is a true copy. For the Spiritual Court has no authority to authenticate a will of lands, and the seal of the Court does not prove it to be a true copy, except so far as relates to personal property (a); it must be proved by one at least of the attesting witnesses (b), if any be living, that the will was signed by the devisor, or by some one in his presence, and by his express directions. It has been doubted whether it be sufficient that * 1683* the testator should seal the will (c). But according to Signature. the later authorities, mere sealing without writing is insufficient; for the evidence arising from hand-writing affords greater security and certainty than that arising from sealing (d). (y) Supra, Vol. I. p. 328. (z) 1 Ld. Raym. 731, 2; Skinn. 174; supra, Vol. I. p. 231. Neither is an exemplification under the great seal evidence of a will. Comb. 46. (a) B. N. P. 246. But in an anonymous case (Holt, 298), where a defendant in replevin avowed for a rent-charge, but could not produce the will under which he claimed, and which belonged to the devisee in fee, the Ordinary's register of the will, and proof of former payments, were held to be sufficient evidence against the devisee. (b) Infra, 1692. (c) See Lemayne v. Stanley, 3 Lev. 1. By three of the Judges a sealing was held to be sufficient; so by Lord Raymond, at Nisi Prius, Warneford v. Warneford, 2 Str. 764. And see Lord Holt's dictum, Lee v. Libb, 1 Show. 69; and Gryle v. Gryle, 2 Atk. 176; Bac. Ab. tit. Wills, D. 2. (d) Lord Hardwicke, in Grayson v. Atkinson, 2 Ves. 459, observ into form, and in part read to the decedent, who became insensible before the reading was finished-and the evidence of A. was confirmed in part by B. and in part by C.-it was ruled that the notes of instructions made by A. were sufficiently proved, ibid. But in Hock v. Hock, 6 Serg. & Rawle, 47, it was held that the execution of a will must be proved by two witnesses, each of whom must separately depose to all facts necessary to complete the chain of evidence; so that if one witness only were required, the will would be fully proved by the evidence of either.] ᏢᎪᎡᎢ IV. As evidence of the actual hand-writing of the party affords a more effuctual remedy against fraud than the mere impression of a seal, the identity of which may be in itself doubtful (e), or which, if the identity be proved, may have Signature. been made by another without authority, it is impossible to suppose that the Legislature did not mean to require an actual signature. It is sufficient if the testator sign his name at the beginning or side of a will, for the statute does not require him to subscribe it (g), as where he writes the will himself, beginning I, A. B. (h). But where * the will consisted of * 1684 several sheets, and the testator signed two of them, but from weakness could not sign the rest, the Court of King's Bench was of opinion that the will was incomplete (i) (1). But where the will, which was written on three sides of a sheet of paper, concluded by stating that the testator had signed his name to the first two sides, and had put his hand and seal to the last, and in fact he had put his name and seal to the last, but had omitted to sign the other sides, it was held that the will was good, the signing the last sheet showed that the former intention had been abandoned (k). It was held to be unnecessary, even when the testator was blind, that the will should be read over in the presence of the attesting witnesses (1). But it was then said, that stronger evidence would be required in the case of a blind ed, "The statute, by requiring the will to be signed, undoubtedly required some evidence to arise from the hand-writing. Then how can it be said that putting a seal to it would be a sufficient signing? For any one may put a seal; no particular evidence arises from sealing. Common seals are alike; no certainty or guard arises from them." And see Smith v. Evans, 1 Wils. 313. Ellis v. Smith, 1 Ves. jun. 11; 17 Ves. 458; 18 Ves. 175. In Lemayne v. Stanley, (3 Lev. 1), it was held that it was not necessary to write, for some cannot write, and their mark is then sufficient signing; others have their name on a stamp, and that is good enough. (e) See Grayson v. Atkinson, 2 Ves. 459; 17 Ves. 458; 18 Ves. 175. (g) Hilton v. King, 3 Lev. 86; 9 Ves. 248. (h) Lemayne v. Stanley, 3 Lev. 1; 1 Freem. 538. Hoil v. Clark, 3 Mod. 218. (i) Right d. Cater v. Price, Doug. 241. (k) Winsor v. Pratt, 2 B. & B. 650, (1) Longchamp v. Fish, 2 N. R. 415. (1) [In Pearson v. Wightman, 1 Rep. Con. Ct. 345, it is said that where a will is written on several sheets of paper, it has never been determined that the testator must sign them all.] PART IV. Attestation. man than the mere attestation of signature, which stronger evidence had been supplied by the circumstances of that case (m) (2). That it was attested and subscribed, &c.-Although proof be essential that the will was attested by the witnesses in the presence of the testator, it is not necessary that such attestation should be stated on the face of the will (n) (3). 1685 The attestation of an illiterate witness, by making his mark, is a sufficient subscription (o) (1). And although the witness must attest and subscribe the will in the presence of the devisor, it is not necessary that they should do so in the presence of each other (p); neither (m) The terms of the will had been dictated by the testator to Davis, (who was afterwards one of the attesting witnesses,) and was made in favour of a step-daughter, who lived with the testator, to the disinherison of his son. After the will had been written, it was read over, by the desire of the testator, in the presence of the step-daughter and several other persons present. A copy was made. And two months after, the testator made an alteration in it, and perfectly understood what he was doing. (n) Croft d. Dalby v. Pawlet, Vin. Ab. tit. devise (N. 9); Bac. Ab. tit. Wills, D. 2. Price v. Smith, Willes 1; 4 Taunt. 217. And per Ld. Eldon, Rancliffe v. Parkyns, 6 Dow. 202. (0) Harrison v. Harrison, 8 Ves. jun. 185; Addy v. Grix, Ibid. 504. (p) Smith v. Codron, cited 2 Ves. 455; Grayson v. Atkinson, 2 Ves. 454; Jones v. Lake, cited 2 Atk. 177. n. See Stonehouse v. (2) [In Shanks v. Christopher, 3 Marsh. (Ken.) Rep. 144, it was held that although a testator be illiterate, it is not necessary that his will should be read to him, to render it valid; his acknowledgment of the signature is evidence that he is informed of the contents. Where the execution of a will by a blind or illiterate man is proved by the legal number of witnesses, one witness is sufficient to rebut the imputation that a paper, of the contents of which he was ignorant, was imposed on him. Lewis v. Lewis, 6 Serg. & Rawle, 489.] (3) Nor is it necessary that the fact of his presence should be proved by the attesting witnesses, to the exclusion of other testimony. Gwinn v. Radford, 2 Littell's Rep. 137.] (1) [Where one, who was named as executor, wrote the will, it was held that this was not attesting and subscribing the will as a witness, although it was contended that the scrivener, being named therein, necessarily wrote his own name in the course of writing the will, and that it was done in the testator's presence. Snelgrove v. Snelgrove, 4 Desauss. 274. So, a will executed in the presence of two subscribing witnesses is not sufficient, although the scrivener was present at the execution. Dunlap v. Dunlap, 4 Desauss. 305. And a codicil (written on the back of the will) which was executed in the presence of two subscribing witnesses, one of whom was different from the two witnesses of the will, does not give the will validity. ibid. Sed vide Mooers v. White, & al. 6 Johns. Ch. Rep. 375.1 |