Lacey v. Dobbs. Upon affirmance in the prerogative court, by the decree that is the subject of the present appeal, the learned chancellor, sitting as ordinary, was largely influenced, if not controlled, by a deliverance in that court in 1858, in the case of Mundy v. Mundy, 2 McCart. 290, to the effect that the order of signing was not material to the validity of a will. The question has been directly involved in no other reported case in this state. The first section of the supplement, approved March 12th, 1851, to "An act concerning wills" (Gen. Stat. p. 3760), upon which all valid wills must rest, reads as follows: "All wills and testaments of persons dying after this act shall take effect, or who may have died since the fourth day of July, in the year of our Lord eighteen hundred and fifty, shall be in writing, and shall be signed by the testator, which signature shall be made by the testator, or the making thereof acknowledged by him, and such writing declared to be his last will in presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator; and all wills and testaments of persons dying since the day above mentioned, made in manner prescribed, by any person competent by law to make such will, shall be sufficient to devise, pass and bequeath all estates and property, real or personal, and all rights of any kind, and to appoint a guardian or guardians to any child of the testator during infancy." The grammatical sense of this enactment is that the entire testamentary act is to be attested by two witnesses, by the subscription of their names. They are to subscribe "as witnesses" i. e., as those who know (Saxon witan) what was said and done. They cannot know before the fact. But the apparent meaning of words must yield to authoritative judicial construction; and a judgment of the prerogative court, of long standing, although not binding in this court, should not lightly be overruled. Hence some elaboration seems proper in vindicating a determination contrary to the deliverance mentioned the more so because of confusing adjudications elsewhere. It will be found upon examination of the case cited that such deliverance was an ill-considered make-weight for a decision previously placed on a sound basis with which it was really inconsistent. The decree was mainly and rightly vested on the evidential force of the attestation signed by the testamentary Lacey v. Dobbs. witnesses. It was said: "The attestation clause, with the signatures of the witnesses, is prima facie evidence of the facts stated in it. It may be overcome by the witnesses themselves, or by other witnesses, or by facts and circumstances irreconcilable with its verity. If there is no attestation clause the case is different. In the one case there must be affirmative proof of publication and of the other requisites; in the other there must be affirmative proof of the want of those requirements." In Allaire v. Allaire, 8 Vr. 312, the present chief-justice, speaking for the supreme court, said that the true principle had been so declared with exactness; and in Allaire v. Allaire, 10 Vr. 113, this court held that the legal rule was thus properly settled. But not content with this firm ground of decision, the learned ordinary, evidently without scrutiny of the statute, and without that careful consideration almost always displayed in his judicial utterances, went on thus to support it: "Mrs. Manning at one time says that she thinks her husband [one of the testamentary witnesses] signed before the testator. If the fact was clearly proved, it would not affect the validity of the will. The particular order of the several requisites to the valid execution of a testament is not at all material. Vaughan v. Burford, 3 Bradf. Surr. 78." This is most unsatisfactory. The order of the requisites to the execution of a will is not material. The testator may declare the "writing" to be his will before or after or contemporaneously with the making or acknowledging of the signature, but attestation is a different matter. Of course the word "execution" was used-though inaptly to include the subscription of the witnesses, and the New York surrogate's decision, on which too hasty reliance was placed, was to the effect stated, upon a New York statute like our own. That decision has since been repudiated by the court of appeals, and it is strange that so acute a reasoner as the writer of the opinion in Mundy v. Mundy should not have seen the inconsistency of antecedent subscription of witnesses with his declared rule that "the attestation clause, with the signature of witnesses, is prima facie evidence of the facts stated in it." One of those facts must be the making or acknowledging of the testator's signature. The attestation clause, he had said, can only be over Lacey v. Dobbs. come by proof irreconcilable with its verity. When signed, therefore, in order to have such a probative force it must be true. The rule necessarily interprets the statute. The rationale of the rule was very clearly stated by ViceOrdinary Van Fleet in Farley v. Farley, 5 Dick. Ch. Rep. 434, 439. He said that an attestation clause is "for the very purpose of preserving in permanent form a record of the facts attending the execution of the will, so that, in case of the failure of memory, or other casualty, they may still be proved. It is for this reason that the courts have uniformly held that, on proof of the authenticity of the signatures of the subscribing witnesses, the facts stated in the attestation clause must be considered and accepted as true until it is shown by affirmative proof that they are not." The late chancellor, sitting as ordinary, in Darnell v. Buzby, 5 Dick. Ch. Rep. 725, 727, tersely said: "The attestation clause recites particulars which assert complete obedience to all the requirements of the statute, and the signature of the witnesses being admitted, that clause makes prima facie proof of all the facts stated in it." If it be urged, as indeed it has been in some of the cases, that the legal presumption raised by the attestation clause is an arbitrary one, because the witness first subscribing cannot, in the nature of things, attest that the other subscribes in the testator's presence, the answer is that, in this regard, all that is required by the statute is that each witness shall so subscribe. The attestation is not joint, but several, and the witness subscribing does not attest the signature, but only the presence of his colleague. To the argument that, as like effect is given to an attestation clause by those courts that hold the order of signing to be immaterial, it is at least disputable that such rule of evidence is inconsistent with that laxity, it is sufficient to reply that in any case all that need be atttested is that for which the particular statute involved requires the presence of witnesses, and that no court has yet held that attestation can precede the testator's signature where the statute construed requires, in terms, as does ours, the making or acknowledging of such signature to be in the presence of the testamentary witnesses. Lacey v. Dobbs. Before proceeding to consider direct adjudications on the question sub judice, it will be necessary to present the state of the law on the subject of wills at the time of the enactment of our present statute. Testaments of personalty were, in England, until the reign of Victoria, left to the ecclesiastical courts unaffected by legislation. Devises of lands were sub temp. Hen. VIII. required, by act of parliament, to be in writing, but no formalities or attestation were prescribed. The statute of frauds of 29 Car. II. c. 3 §5, provided that such devises "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 no effect." This statute inherently prevailed or was, in substance, enacted in the American colonies and the states of the union, many of whom extended its provisions to testaments of personalty. In New Jersey a change, in phraseology at least, was made. In 1713-1714 it was enacted that "all wills and testaments which hereafter shall be made in writing, signed and published by the testator in presence of three subscribing witnesses and regularly proved, &c.. shall be deemed sufficient to devise lands." Allin. L. p. 27. * * * This statute survived the Revolution. In Compton v. Mitton, 7 Halst. 70, decided in 1827, Chief-Justice Ewing called attention to the difference between it and the English statute of frauds. He said: "Under both, wills are to be in writing, to be signed and have at least three witnesses. Our act requires the will to be published, which is not expressly directed by the other. By the English statute the will is to be signed. By our act the will is to be signed and published in the presence of witnesses. By the former the witnesses are to attest and subscribe in the presence of the devisor. By the latter they are not, in terms, required so to do, although it is our usual and commendable custom." Like other provisions of the statute of frauds, its fifth section Lacey v. Dobbs. was very loosely construed, and to remove the consequent uncertainty, as well as to bring testaments of personalty into uniformity with devises of land, "An act for the amendment of the laws with respect to wills" was passed by parliament, taking effect on July 3d, 1837. 1 Vict. c. 26. By section 9 it was enacted that "no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." This statute soon came before the ecclesiastical courts, and in 1842 was carefully considered by Sir Herbert Jenner-Fust in the prerogative court of Canterbury. Moore v. King, 3 Curt. 243. The great importance of the case as a leading one was perceived and expressed the previous interpretations, though of the same tenor, having been ex parte. Re Goods of Olding, 2 Curt. 865; Re Goods of Byrd, 3 Curt. 117. These were the facts: The testator signed the draft of his will in the presence of his sister, who subscribed her name as a witness. On the next day he acknowledged his signature, in her presence and in the presence of another person, to whom the sister pointed out her signature, and who then subscribed as a witness. The will was held invalid for lack of conformity to the statute. It was observed that the new legislation was amendatory, and, in fact, had grown out of the loose construction that had been given to the statute of frauds, and the judge said: "I clearly find that the object of this act is to remove every possible doubt, thereby taking away all latitude and discretion in its interpretation." He declared his opinion that "the act is not complied with unless both witnesses shall attest and subscribe after the testator's signature shall have been made or acknowledged to them when both are actually present at the same time." He pointed out that the alternative of acknowledgment of the testator's signature, expressly given by the act, precludes any implication that the witnesses might acknowledge their signatures |