1844-6. COOPER v. BOCKETT. third of March last, I believe; I never saw Captain Cooper's Will after the time I signed it, and I did not notice whether there were or were not any of the alterations which I now see in it." The same witness on her examination upon interrogatories stated: "I cannot say whether Captain Cooper signed his Will in my presence, or not; I did not see what he wrote, but he said, 'This is my name in your presence,' and so I suppose he had written his name when he said so. I do not recollect the words he used better than I have told them; my husband and I were both present at the time Captain Cooper used those words, and it was after we had signed our names to the Will. I cannot say that Captain Cooper's name was signed to the Will when I signed it; as well as I can now remember, it was all blank where I now see Captain Cooper's signature. I have admitted such to be the fact, and so has my husband, I believe, when asked about it. My husband had not signed Captain Cooper's Will before I was called into the room to sign it; I will swear that my husband signed it afterwards in my presence. My husband has never told me that Captain Cooper signed the Will after I had left the room; it was after I had signed my name, and not before, that Captain Cooper made the mark round about our names." The Respondent also brought in the affidavit of Joseph Netherclift, a fac-similist and lithographer, who deposed as to the erasures and the words previously written, as printed in italics in the copy of Will above given. The learned Judge of the Prerogative Court, by his sentence, on the 8th of August 1843 (a), pronounced (a) Reported 3 Curt. 648. for the force and validity of the Will, and decreed Probate thereof, with the several alterations now appearing therein, to Daniel Smith Bockett and Henry Spencer Cooper, the executors thereof appointed, or either of them. From this sentence, the present Appeal was brought by Henry Spencer Cooper, who prayed that it might be reversed, and the cause retained; and that the Court would pronounce against the validity of the Will, that the deceased was dead intestate; and decree Letters of Administration of the goods and chattels of the deceased to be granted to him. The Appeal was argued in the first instance, by Mr. Erle, Q. C., and Dr. Addams, for the Appel- and Mr. Turner, Q. C., and Dr. Jenner, for the Re spondent, Bockett. It was argued on both sides as a question of fact, upon the evidence of the witnesses, whether, having reference to the probable circumstances under which the Will was produced and witnessed, the deceased had signed the Will before their subscription. Blake v. Knight (a), Moore v. King (b), Gove v. Gawen (c), Chambers v. The Queen's Proctor (d), were referred to. At the conclusion of the argument, their Lordships said, that the question raised, involved not only one of fact, but also one of law, and directed the Appeal * Present: Lord Brougham, the Vice-Chancellor Knight Bruce, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh. (a) 3 Curt. 547. (c) 3 Curt. 151. (b) 3 Curt. 243. 1844-6. COOPER V. BOCKETT. 17th June 1844. 1844-6. COOPER v. BOCKETT. 14th Dec. 1844. to be re-argued with reference to that opinion. The Mr. Wigram, Q. C., and Dr. Addams, for the From the testimony of the witnesses to the factum, (a) 4 Moore's P. C. Cases, 265. (b) 1 Rob. Ecc. Reps. 14. (c) 1 Rob. Ecc. Reps. 5. (d) 3 Moore & Payne 689. 6 Bing. 310. (e) Comyn, 196. Sir Thomas Wilde, Mr. Turner, Q. C., and Dr. 1844-6. COOPER ข. It is not necessary to give affirmative evidence by BOCKETT. the subscribing witnesses of the fact of signing. The Court will judge from the whole of the case, and presume the execution by a testator upon the circumstances. Blake v. Knight (a). Suppose the witnesses were dead, the Will on the face of it would appear a good Will. Too much importance must not be given to the evidence of the attesting witnesses, who are illiterate persons; it would be dangerous to the interests of society, if witnesses of the class here subscribing were enabled to cut down a Will when called upon to depose to the exact order of circumstances attending the execution. It is neither safe nor reasonable to suppose that the Legislature intended that minute facts should be deposed to by the witnesses. No form of attestation is required, and yet it is said by the Appellant, that the witnesses are to depose to, or attest, those facts in a particular order. The witnesses do not in fact say, that the testator wrote his name after they had signed. They say, speaking only to the best of their knowledge and belief, that they saw him write something; it is clear from inspection of the Will, that if he wrote anything, it must have been the words, "9, Pall Mall East, Servants at house," and this will account for their mistake. The circumstance of there being a blank space after the names of the witnesses, is satisfied by the space being blank where the words “9, Pall Mall," were afterwards written. [The ViceChancellor Knight Bruce: There seems to be some difference in the colour of the ink in which the words (a) 3 Curt. 547. COOPER v. BOCKETT. 1844-6. "9, Pall Mall East," &c. are written, and that in which the words "R. H. S. Cooper" are written.] The probability is, that some blotting-paper was used, and this would be another reason for thinking that those were the words written, after the signature of the witnesses. Much reliance cannot be placed upon the evidence of a witness, who admits, that at the time when the act which he is deposing to was done, he was flurried, and not at his ease. There can be no doubt, that upon the words of the 9th Section of 1 Vict., c. 26, this Will has been acknowledged in the presence of two witnesses, present at the same time. This distinguishes the case from Ilott v. Genge. The only other requisition of the section is that the witnesses who signed must be the same witnesses to whom the testator acknowledged the Will. [Lord Campbell: The witnesses do more than sign, they must attest.] They must attest the Will, but that is to prevent the substitution of a fictitious instrument. No form of attestation is required by the 9th Section. The words are “attest and subscribe;" that is, subscribe as witnesses. The meaning of the word "attest" is not that the witnesses are to attest every circumstance, which would be sufficient to make valid the Will. It simply means that they attest a paper, that has been declared a Will. [Baron Parke: It must mean that they attest a paper which he declares to be his Will. That is to be complete so far as the testator can make it complete by his own act.] The question is, are the witnesses to subscribe an instrument as perfect as it possibly can be ; or are they to subscribe an instrument, which is in its ordinary sense a Will? What is meant by the word " Will," and in what sense is it used? The argument of the Appellant must be that the word |