Lacey v. Dobbs. had called attention to the fact of the essential differences between the statute of frauds (of which it was said the Maryland act was a copy) and the Victorian statute, as pointed out by Sir Herbert Jenner-Fust. The Illinois statute is unique. It enacts that "all wills, testaments and codicils * * * shall be reduced to writing and signed by the testator or testatrix or by some person in his or her presence, and by his or her direction and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom declaring on oath or affirmation, before the county court of the proper county, that they were present and saw the testator or testatrix sign the said will, testament or codicil in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of such will, testament or codicil to admit the same to record; provided, that no proof of fraud," &c. Plainly it is the will, not the signature or its acknowledgment, that is to be attested, and the supreme court of the state, in Hobart v. Hobart, 154 Ill. 610, has held that where a testator does not sign in presence of the witnesses it is not necessary for him to acknowledge in their presence a signature previously made, the words "the same," twice occurring in the statute, in the opinion of the court, referring back to "said will;" and while, in Gibson v. Nelson, ubi supra, the same court, solely on the authority of O'Brien v. Galagher, Rosser v. Franklin and Miller v. McNeil, ubi supra, did hold the order of signing immaterial, it indulged in reasoning that destroyed the force of its decision if the statute requires attestation of signature-by declaring that "undoubtedly the proper order is for the testator to sign first, for after the witnesses had signed, he might never sign, or might sign on some other occasion, or out of their presence, which would not be a compliance with the statute." I do not concede that the American cases were rightly decided. I very much doubt if the English courts would have so construed their basic legislation. In Peate v. Ougly, ubi supra, the verdict was justified only on the assumption that the jury found that there was execution before attestation. In Windham v. Chetwynd, 1 Burr. 414, 421, Lord Mansfield seems to imply such a Lacey v. Dobbs. necessity, while in Roberts v. Phillips, 4 El. & B. 450, 459, Campbell (then lord chief-justice) assumes it in upholding as valid a subscription by the witnesses at a place other than the foot of a will made in 1828. He says: "The mere requisition that the will shall be subscribed by the witnesses we think is complied with by the witnesses who saw it executed by the testator immediately signing their names on any part of it, at his request, with the intention of attesting it." In this country the courts of five states have interpreted enactments copied from the statute of frauds as requiring signature by or for the testator before there can be subscription, in attestation, by the witnesses. In North Carolina this occurred in 1841 (Ragland v. Huntingdon, 1 Ired. L. 561); followed in 1854 (In re Cox's Will, 1 Jones L. 321); but the first adequate treatment of the subject was in 1865, by Gray, J., in the Massachusetts supreme court, in Chase v. Kittredge, 11 Allen 49. With a wealth of erudition and argument he demonstrated, both on authority and principle, that attestation cannot precede execution of a will. The Massachusetts statute, enacted in 1836, as quoted in the report, was as follows: "No will (excepting nuncupative wills) shall be effectual to pass any estate, whether real or personal nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed, in the presence of the testator, by three or more competent witnesses." On the point in question the learned judge saw no difference between the statutes of Charles and Victoria, and he accepts the English decision culminating in Hindmarsh v. Charlton, ubi supra, as authoritative and coincident with the reason of the case. He assumes indeed, as did the Kentucky court, that attestation and subscription are separate acts, but only to insist the more strongly that subscription by the witnesses, which he says is "in proof of" their attestation, must be the final act in the series essential to a valid will. No judge differing in opinion has attempted to answer the argument of Judge Gray, though several have ignored the decision as authoritative except where, as in the case decided, a necessary witness had subscribed the Lacey v. Dobbs. will in the absence of the testator. In a very recent decision the supreme court of Massachusetts has adopted Judge Gray's opinion in a case directly in point, and, as compactly stated in the head-note, has held that "witnesses to a will must sign after the testator has signed." Marshall v. Mason, 176 Mass. 216 (1900). Chase v. Kittredge was approved and followed, in 1867, in Indiana, where Chief-Justice Elliott says that the statute is substantially the same as 29 Car. II. c. 3 § 5, except that the English act related only to devises and required three or four, instead of two or more, subscribing witnesses. Reed v. Watson, 27 Ind. 443. In Georgia, in 1869, it was held that, under a like statute, subscription of witnesses could not be vivified by acknowledgment after a signing by the testator on the following day (Duffie v. Corridon, 40 Ga. 122), and in 1891 it was directly held, in an opinion by Chief-Justice Bleckly, that "the witnesses to a will must subscribe their names as witnesses after the will is signed by the testator-there being nothing to attest until his signature has been annexed. It makes no difference that the signing and attestation are each a part of one and the same transaction." Brooks v. Woodson, 87 Ga. 379. A concise, but comprehensive, note by the reporter classifies the decisions on the general subject, including some that are merely cognate to the questions involved. The annotation to this case, as reported in 14 L. R. A. 160, may also be consulted with profit. The fifth state is Texas, where the ruling, though postulated for a decision of the tenor of Roberts v. Phillips, ubi supra, is positive and unequivocal. Fowler v. Stagner, 55 Tex. 393. It appears, therefore, that even under statutes not, in terms, requiring a testator's signature, but only his declared written will, to be attested, very weighty judicial opinion repudiates the idea that there can be attestation before signature. In no case has it been held that, where there is that requirement, subscription of witness can precede such signature. The only state having that statutory requirement, the courts of which have had occasion directly to deal with it, is the State of New York. There the statute, since January 1st, 1830, has read as follows: Lacey v. Dobbs. "Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: (1) It shall be subscribed by the testator at the end of the will. (2) Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses. (3) The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament, and (4) there shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator." 2 Rev. Stat. p. 63 $ 40. In construing this statute, in Vaughan v. Burford, ubi supra, and other decisions, Surrogate Bradford went astray. The supreme court, following him, established a will signed by the witnesses before subscription by the testator, but on the same occasion. The judgment was reversed in 1868 by the unanimous voice of the court of appeals, then exceptionally strong. The reasoning of the opinion of Woodruff, J., is so cogent, yet simple, that I will quote it. After showing the substantial identity of the New York statute with section 9 of 1 Vict. c. 26, and citing many of the English decisions interpreting that act, he proceeds: "Our statute on this precise point reads: "There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator.'. They are, in and by this act of signing their names, to attest, not only the signing, or acknowledgment of signing, of the testator, but his contemporaneous declaration that it is his will. Their signatures do not attest the signing by the testator if they are placed there before the will is signed by him. For some period, longer or shorter, as the case may be, those signatures attest no execution-they certify what is not true-when and in what moment do they begin to operate as a compliance with the statute? The only reply that can be given is, when the testator signs his name. This is a dangerous construction of the statute. May the testator keep these signatures in his possession one hour, one week or one year, and then add his signature? Certainly not, unless he summon the same persons to see him sign or hear his acknowledgment thereof. But suppose he adds his signature and dies, what then becomes of the presumption Lacey v. Dobbs. of due execution, arising from the apparent regularity and the due form of the attestation clause? Once let it be settled that witnesses may sign before the testator and all presumption of due execution, when witnesses are dead or beyond reach, ceases. If it be said that witnesses will not sign, and so leave their names in the possession of a testator; to suppose they would, is to impeach their honesty, and it is the presumption of men's truth and honesty which makes regularity and formal attestation prima facie evidence of due execution, I do not think this a sufficient answer. The statute contemplates acts, each of which is serious and important. Execution and the attestation thereof bear a plain relation to each other in point of time, in the good sense and common apprehension of everyone, and the statute prescribing the requisite formalities to a valid execution and authentication plainly contemplates that the acts of the witnesses shall attest the signing and declaration of the testator as a fact accomplished. I was at first inclined to think that if the whole was done at the same interview, the attestation by the signing of the witnesses might be done in any part of it, without regard to the order of events, as above suggested, the acts of the testator may be; but, upon further reflection, I am satisfied that the view taken of the subject of the ecclesiastical court in England best conforms to the language and intent of the statute. The signing or acknowledgment by the testator and his declaration that the instrument is his last will and testament are, in the statute, made contemporaneous, and neither must necessarily precede the other, and yet, in practice, this must be construed to mean on the same occasion, each as part of the same transaction, and not requiring that the words of declaration should actually accompany the movement of the pen in signing, or be actually embraced in the terms of acknowledgment of such signing. Practically which utterance is first is of no possible importance. The attestation by witnesses is of a past transaction-it is so in its nature, and so in the ordering, and, I think, the meaning of the statute. This distinction, if it served no useful purpose, if the contrary was liable to no danger, nor led to any abuse, might be deemed a too strict adherence to the literal interpretation of the law. But reasons |