deciding upon the due construction of the statute of frauds, the judges did not attempt to cut down its provisions, but construed them according to the intention of the legis lature; and although one learned judge thought that the witnesses should attest the signing by the testator, yet that was overruled. It was also held, that an attestation containing the words 'sealed and delivered' was sufficient; and it was said that this was grounded on the inconvenience that might arise in families from having it known that a person had made his will (d). The inconvenience which a contrary decision upon private powers has occasioned in [443] families, shews how strongly the same rule was called for in regard to them. The statute of frauds does not, like the common powers, merely require an attestation, but it expressly requires an attestation and subscription; and yet the subscription, as we have seen, need not contain all the facts which the witnesses attest. It is nevertheless held that, in the case of a private power, a subscription, although not required by the powers, excludes the proof or presumption of the witnesses having attested any act which is not stated in the attestation. The statute, too, in express words, requires that the witnesses shall attest and subscribe in the presence of the testator. It is however settled that the attestation need not state that fact. The judges have said, that the witnesses ought to set their names, as witnesses, in the presence of the testator; but it is not required by the statute that this should be taken notice of in the subscription of the will, and, whether inserted or not, it must be proved; if inserted it does not conclude, but it may be proved contrà; then if not conclusive when inserted, the omission does not conclude that it was so. If we compare the common power, upon which it is held that the attestation must contain the word 'signed,' with the words in the statute which have received a contrary construction, we shall at once see how difficult it would be to attempt to reconcile the cases. The words of the statute are 'devises to 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.' The words of a common power are by deed or writing under his hand and seal, attested by two or more credible witnesses.' The common power requires much less than the statute. Let us suppose that a power was given to be executed by will, in the very words of the [444] statute, could the courts put a different construction on those very words to that which they have already received? The answer is obvious (a). Suppose a power to be in the very words of the statute, but the word 'writing' to be used, generally, and not to be confined to a will; it is settled that such a power may be executed by deed or will. If a will attested so as to satisfy the statute would be a good execution of the power, could it be contended that a deed executed under the same power, in the attestion to which the word 'signed' was omitted, was a bad execution of the power? And if such powers must be held to be duly executed, upon what ground can a power, to be executed by writing under hand and seal, and attested by witnesses, be considered to require the fact of signature to be inserted in the attestation? It seems impossible to reconcile the cases. If the recent decisions are to stand, all the decisions on the statute of frauds, to which I have adverted, and which have been so long held sacred, will, in effect, be overruled (b). If, however, the decisions on the statute should be deemed to rule the case under consideration, not only would contrary decisions on the same words be avoided, but the daily contracts of mankind would be upheld according to their intention; and the bounty of testators would flow having visited Spain, and without making the tender, because no such conditions as these are now to be found amongst the common forms in a conveyancer's office?

(d) If "delivered" when predicated of a will, means "published," the courts would have no power to require the insertion of the word "published." If it does not, the preservation of the peace of families would appear to be rather an object to be attained by an application to the legislature, than a ground for a judicial rejection of the express and formal provisions of an act of parliament.

(a) The construction may be the same, although the effect may be totally different. A bill of exchange drawn in Paris will have the same construction as a bill, in iisdem verbis, drawn in London; but the drawer of the latter will be discharged by the omission to give notice of dishonour; the drawer of the former will remain liable, except so far as he is damnified by the omission.

(b) Quære.

in the channel in which it was intended to go (c).

In this case the courts

[445] have not to struggle with the words in order to support the execution of the power. But if even the words were hard to manage, yet the general opinion of the profession under which men have so long been induced to act, would seriously call on the courts to struggle with the words and make them bend to that construction which they have in practice so long received (a). [446] The case of Wright v. Wakeford gave such a shock to the security of titles, that part of its mischief was speedily remedied by an act of parliament 54 G. 3, c. 168, intituled, 'An act to amend the laws respecting the attestation of instruments of appointment and revocation made in exercise of certain powers in deeds, wills, and other instruments.' That act provided (but retrospectively only), that an instrument (if duly signed and executed, and, in other respects, duly attested) should have the same force and effect as if a memorandum of attestation of signature had been subscribed, by the witness expressing the fact of sealing, or sealing and delivery; and it is not to be denied that that statute,

(c) This observation would apply to wills; as a testator never intends that to descend to his heir, which he attempts, however imperfectly, to devise to another. But in the case of a power, the testator, or settlor, may be presumed to have in view both the donee and the party whom he authorizes to take in the event of the power not being formally executed.

(a) In September 1833, Sir Edward Sugden, when advising upon the will of Mrs. L. H. Skynner, expressed himself as follows, in a joint opinion given by that learned. person and Mr. W. Hayes :-"The state of the authorities does not warrant an opinion that the will of Mrs. Skynner was a valid execution of the power of appointment given to her by the settlement; but there are strong grounds of argument in support of the sufficiency of the attestation. We think that by the word 'witness' the persons whose names are subscribed must be taken to attest the observance of the solemnities with which the testatrix has, in the concluding or witnessing clause, expressed the instrument to be perfected, namely, the signing and the sealing-and that there is, in effect, an attestation of these facts; and this opinion has the sanction of authority. (Sed vide supra, 393, n.). But the difficulty remains of satisfying the requisitions of the power in regard to the attestation of the fact of publication. This cannot be done, unless the operation of the word 'witness' can be extended beyond the concluding or witnessing clause, to the declaration at the close of the will itself. Unquestionably, a declaration by the testatrix, in the language of the clause, would be, for all purposes, an effectual publication; and it has been recently decided, that a power requiring the witnesses to attest the prescribed ceremonies, is satisfied by an attestation which expresses those ceremonies substantially, though not in accordance either with the language of the power, or with technical accuracy. In the case alluded to (probably Moodie v. Reid, 7 Taunt. 355), the power required the will to be duly executed and published under the hand and seal of the donee, in the presence of, and attested by, the witnesses, and the attestation expressed the will to be signed, sealed, and delivered' (not published), and did not state those ceremonies to have taken place in the presence of the witnesses; this was adjudged a good attestation.

"It is very probable that the court, following up the principle and the spirit of this determination, which manifests a disposition to relax the literal strictness of previous decisions, may be inclined to construe the declaration which concludes the will in connection with the witnessing clause, so as to incorporate in that clause the ceremony of declaring or publishing the will, and thus admit of the application of the word 'witness' to all the ceremonies required by the power. It may even be contended, that resort to the declaratory clause of the will itself is unnecessary, inasmuch as it is apparent on the face of the witnessing clause, that the testatrix signed and sealed the paper as her last will and testament, in witness whereof I have to this my last will and testament, &c.,' and the witness must be taken to attest such signing and sealing, which would amount to a publication. But the success of the argument in favour of the will must depend, in a great degree, upon the inclination of the court to relax the rigour of the doctrine, and help out the meagreness of the attestation by a liberal construction. But as the law now stands, we think that the appointment was badly executed." The words in italics were omitted in the note to Doe d. Spilsbury v. Burdett, 6 N. & M. 267, as the matter was then, to a certain extent, sub judice.

having corrected one part of Wright v. Wakeford, and having left the remainder untouched, affords some sanction to the authority of that case.' Sir Edward Sugden,

I humbly think, observes justly "that it is much to be regretted that the measure was not made at once a complete remedy for the evil which it professed to cure. Every sound principle of legislation required that the act should have been prospective. The act, however, was limited, in its progress through parliament, to a retrospective operation."

[447] All the difficulties would be obviated by a decision by this House, applying to these cases the principle of the whole current of authorities on the statute of frauds; and now that this point is completely before your lordships, I am unwilling to relinquish the hope that the case of Wright v. Wakeford may be overruled.

PATTESON J. My lords, the power set forth on the special verdict referred to by your lordships in these cases, requires that any will by which it is to be exercised shall be "signed, sealed, and published, in the presence of, and attested by, three or more credible witnesses." The first question which arises, appears to me to be, what is the meaning of the word "attested"? Now the fair meaning of the previous words "in the presence of three or more credible witnesses" must be, that three or more credible persons should see what is done; not merely that they should be present, without having their attention drawn to what is done. Therefore the word "attested," if it have any meaning at all, must import something more than merely being present and seeing what is done. Independently of authority, I should have thought that it meant this, and no more, namely, that the will must not only be signed, sealed, and published, in the presence of witnesses, but that those witnesses must affix their names to it. I find, however, that a sense has been given to the word "attest," when found in a power, in a long series of decisions from Wright v. Wakeford downwards, by a great number of eminent judges, according to all which, without exception, as I understand them, the word "attest means certify by their signature and by written expressions, that the formalities required by the power have been complied with," or to that effect (a).

66

The authority of those decisions appears to me to [448] be much too strong to be resisted; and I agree that it would be very dangerous, especially in matters regarding real property, to unsettle established rules, on which, probably, many titles would depend. Some of those decisions are undoubtedly in cases where the memorandum of attestation has stated some of the requisite formalities, and omitted others; and those cases might have been decided on the ground that "expressio unius est exclusio ulterius;" but I do not find that such ground was taken in them; and in some other cases it could not have been taken, because the memorandum was general. I am obliged, therefore, to come to the conclusion that if the memorandum of attestation is in this case to be considered as consisting of the words "Witness, Charles Ball, Elizabeth Ball, Ann Ball," and no more, this will is not attested at all within the meaning of the power.

The second question which arises is, whether any, and what part, of the body of the will itself, is to be considered as forming part of the memorandum of attestation. I have great difficulty in saying that any part of the body of the will can be considered. The language of the body of a will is that of the testator, and not of the witnesses, who need not, and in practice do not in general, see or read any part of the will. The language of a memorandum of attestation, on the other hand, is that of the witnesses; and I am at a loss to see how one can fairly be taken as incorporated with the other. In Moodie v. Reid, the court of Common Pleas seemed to consider that the concluding part of a will, or, at all events, the signature, might be taken as part of the memorandum of attestation (which was, as here, quite general, being only the word "witness"); but they did not determine that point, for they held the will insufficient, because the publication was not attested. So, also, in Stanhope v. Keir, Sir John Leach, M. R., said that he could not take the attestation, which was merely [449] by the words "in the presence of" to extend to more than the signing; but he held the will bad, and therefore did not determine the present point. Why, it might extend to the signing, and not to the publication, the Master of the Rolls does not explain, nor did the court of Common Pleas in Moodie v. Reid; and I confess, it appears to me that such a distinction is entirely without foundation, and was plainly unnecessary to

(a) Vide supra, 393, n., infra, 430 (d), 431 (a).

the decision of either of the cases. So, again, the same learned judge, in Buller v. Burt, expressed himself still more strongly; but as he held the execution bad in that case also, the present point was not determined. I have not been able to find any case in which it has been held affirmatively, that any part of the body of an instrument can be imported into the memorandum of attestation so as to shew, and to make the witness certify in writing, what it is they profess to attest.

Neither do I find the contrary expressly decided any where; and I do not think that the cases of Wright v. Wakeford, Doe d. Mansfield v. Peach, Wright v. Barlow, Brougham v. Sandys, Allen v. Bradshawe, and some similar cases, even impliedly decide the point; for in those cases, the maxim expressio unius est exclusio alterius, seems to me to apply, and to prevent the importing of the words of the party executing the instrument, into the memorandum of attestation, and adding them to the words of the witnesses, there used. The recent case of Simeon v. Simeon (4 Sim. 555), and Curteis v. Kenrick (3 M. & W. 461), and similar cases, where equivalent words, used in a memorandum of attestation, have been held sufficient, do not appear to me to bear upon this question. In antient times, no doubt, the clause of hiis testibus was part of the instrument, and the names of the witnesses were inscribed in it; and when the names of the witnesses came to be put at the bottom of the instrument itself, [450] they might, for many purposes, be considered as part of the instrument. But when a power requires that the instrument shall be attested, assuming that the construction of that word which I have before stated is the right one, it appears to me, in the absence of any direct authority, that the instrument itself, and the memorandum of attestation, ought to be considered as quite distinct from each other, and as being the acts and the language of different parties,--that the memorandum of attestation ought to be complete in itself, and that any omission or defect in it cannot be supplied, or cured, by reference to the instrument.

For these reasons, I am of opinion that the power in this case was not duly and effectually executed by the will.

PARKE B. My lords, if the question proposed by your lordships had now arisen for the first time, I feel little doubt that I should have answered it by stating to your lordships that the power was well executed; and that, on the ground that where the donor of a power requires an instrument to be executed with certain formalities in the presence of, and to be attested by, credible witnesses, he does not require the witnesses to sign a memorandum of attestation expressing that all the formalities were complied with, but simply to put their names to the instrument as witnesses; and if there had been a special verdict and writ of error in the case of Wright v. Wakeford, and I had been called upon by your lordships to give an opinion on the propriety of that decision before it had been confirmed by others, I should, probably, have given my humble advice to your lordships that it ought to be reversed.

The decision, however, in Wright v. Wakeford not having been reversed, but, on the contrary, followed in others, none of which have been questioned before the highest tribunal, and having been recognised by an act [451] of parliament, the statute 54 G. 3, c. 168, I think myself bound by the authority of that and the subsequent cases; and feeling so bound, I regret that I have to answer the question proposed by your lordships in the negative.

In the Exchequer Chamber, I gave my reasons for the opinion which I had formed; and as my judgment is printed together with that of the other judges of that court (9 A. & E. 940), I think it unnecessary to trouble your lordships with a repetition of those reasons. The argument at your lordships' bar, has not induced me to think that they were wrong, or to qualify or alter the judgment I pronounced. That judg ment was founded upon the supposition that the cases had established a rule of construction,—that if the donor of a power required an instrument to be executed with certain formalities in the presence of, and attested by, witnesses, he must be understood to mean, not only that the instrument (b), but all the required formalities, shall be attested by the witnesses, and stated, by a memorandum in writing, to have taken place in their presence; the presumed intention being that there should be, on the face of the instrument itself, a memorandum that all the conditions necessary to the due execution of the power had been complied with. I have heard nothing from the learned counsel, who have argued the case, nor from the judges, who have delivered

C. P. XII.-31*

(b) Vide supra, 406, n.

their opinions, to lead me to doubt that this rule of construction had been established by the case of Wright v. Wakeford and the subsequent authorities; and it is remarkable that on this point, the opinions of all the judges in the courts below, both those of the Queen's Bench and Exchequer Chamber, agree; and I certainly consider it to be incontrovertibly established.

[452] The only question then appears to me to be, whether this attestation can be so connected with the statements in the will itself, or some of them, as to import that all the requisites intended by the donor of the power, were seen by the witnesses; this being the ground upon which the court of Queen's Bench proceeded.

I fully stated, in my former judgment, the grounds upon which I came to the conclusion, that this could not possibly be done; and as that conclusion is unaltered, I deem it unnecessary to add any thing further.

My opinion, therefore, is, that the power was not well executed.

I am desired to say to your lordships, that my brother Alderson wishes to give his opinion that the will was not duly executed. It is the opinion he formerly gave, and which has not been altered by hearing the arguments at your lordships' bar.

TINDAL C. J. My lords,-In answer to the question proposed by your lordships to H. M. judges, I beg to state that the opinion at which I have arrived is, that the power given to the testatrix by the settlement has been duly and effectually executed by her will.

The opinion of such of my brethren as have held the execution of this power to be defective, has not been grounded upon any apprehension of danger that if the attestation in the present instance is allowed to be good, the restrictions imposed by those who created the power will have been frustrated or evaded. On the contrary, all admit, what indeed is expressly found by the jury, that every requisite which the settlor imposed, except the form of the attestation, has been duly observed; the will having been, in fact, signed, sealed, and published, by the testatrix, in the presence of three credible witnesses. But they rest their opinion upon the authority of cases-of which that of Wright v. Wakeford is the [453] earliest and the leading authority,that the memorandum of attestation, in order to make it a good attestation, within the words of the deed which creates the power, must specify and enumerate the several particulars which are required by such deed; and that the attestation now under consideration, on the authority of that case, cannot be held to contain such enumeration.

Most who have given their opinion against the due execution of this power, have accompanied it with expressions of regret that they have been compelled so to do by the authority of that which is called the leading case; and many, on former occasions where the authority of that case has been examined and discussed, have stated their wish that the doctrine derived from it should be reconsidered when an opportunity offered before the House of Lords; from which I infer that the propriety of the decision in that case is not entirely acquiesced in, and that, at all events, in their judgment, it ought never to be held as an authority to bind future cases which no not strictly, and in every particular, fall within its terms.

My lords, it is upon the precise ground-that I think this case is distinguishable from that of Wright v. Wakeford, and those which have followed it,-that I now humbly offer my opinion to your lordships in favour of the execution of the power.

I propose very briefly to refer, in the first place, to those decided cases. In Wright v. Wakeford, the earliest case on the subject, the power required the appointment to be "by any writing under hand and seal attested by two or more credible witnesses." The memorandum of attestation in that case was "sealed and delivered," omitting the word "signed." The three judges who certified their opinion to the court of Chancery, that the execution of the power was defective, expressly ground it on the consideration "that the point in [454] question is simply whether the attestation written on the deed asserts both the facts, the signing as well as the sealing." That is, whether the word "sealed" necessarily implied that the parties who put their seals to it, put also their hands to it, or "signed" it in the presence of the witnesses; and they held it did not, and that the execution was therefore bad, as the attestation mentioned the sealing only, and omitted the signing.

The three cases which followed, viz., Doe d. Mansfield v. Peach, Doe d. Hotchkiss v. Pierce, and Wright v. Barlow, presented each the very same ground of objection as to their respective forms of attestation, with the former, namely, that the power required two or more acts to be done, and the memorandum of attestation mentioned some