only, omitting the rest. None of those cases presented any new question for the court, but they were decided on the express ground that they could not be distinguished from it; Lord Ellenborough observing, in Doe d. Mansfield v. Peach, "that if it was thought proper to agitate the question further, it should be brought before a court of error. And, in giving the latter judgment, Lord Ellenborough also observed, "that the intention was, that the attestation should be co-extensive with the things required to be done; and this makes the case directly the same as that of Wright v. Wakeford.”

I consider, therefore, the rule deducible from those cases to be, that wherever it does not appear by the attestation itself, either by express enumeration and specification, or by necessary intendment, that every solemnity prescribed by the instrument creating the power, has been complied with, the execution of the power is bad, and that the four cases above referred to have also established, affirmatively, that a memorandum of attestation, mentioning the observance of some, or one only of several solemnities required and omitting [455] the mention of one or more, is not an attestation within the meaning of the instrument creating the power.

But the present attestation does not, as it appears to me, fall within the latter predicament; and it is upon this precise ground that my opinion is rested, viz., that the attestation of the will of L. H. Skynner does not express some only of the solemnities directed to be observed and omit the rest, but, by necessary intendment, shews that all have been observed. It might, indeed, be argued that it mentions none expressly, and is therefore bad upon that ground; but it cannot be held bad on the ground upon which Wright v. Wakeford was determined. I do conceive, however, that the signature of the names of the witnesses immediately underneath the general word "witness" at the foot of the will, constitutes a good attestation, the same being free from the objection raised by those cases, and being supported by the authority of others, to which I shall afterwards refer. For if that word is taken, abstractedly, by itself, as constituting the whole of the attestation, I can see no objection to holding that the three persons whose names are subjoined to it, must be taken to be witnesses to all that was actually done at the time, which is found, by the special verdict to be, all that was required to be done. Or, if the word "witness" is to be construed with reference to the statement immediately preceding it at the end of the will (and one or other must be the sense to be put on the word "witness"), then the word "witness necessarily implies that the testatrix did, in their presence, declare the instrument to be her will, and that she did in their presence put her hand and seal thereto, that is, in the language of the settlement, that she "signed, sealed, and published it in the presence of those three witnesses; for I think it cannot be contended successfully that if a testatrix declares an instrument, which she executed to be her will, any other [456] publication beyond such declaration can possibly be required.

To this construction an objection was taken, by the counsel at your lordships' bar, which had also been relied upon by some of the learned judges who delivered their opinions before me, viz., that it proceeds upon the supposition, that the whole of the instrument may legally be read together to explain the meaning of the word "witness," and that it supposes the witnesses are conusant of the contents of the instrument, neither of which circumstances can be supposed. But I cannot feel the force of this objection. There has been, from the earliest time at which deeds were known, a marked and acknowledged distinction between the operative part of the deed itself, and the testimonium clause (as it is called), at the end of the deed. The essential part of the deed is properly that part, and that only, which contains the grant. The clause at the end is introduced, not as constituting any part of the deed, but merely to preserve the evidence of the due execution of it. Admitting, therefore, the deed itself is matter which may be properly held to be confined to the knowledge of the parties, namely, the grantor and the grantee (a), the testimonium clause is

(a) Even in an ordinary grant, knowledge on the part of the grantee appears to be immaterial, as the estate vests in the grantee upon the execution of the deed or instrument of grant, until disclaimer. Vide 4 Mann. & Ryl. 189 (a). A fortiori is the use executed, and the estate vested, in the appointee, upon the due completion of the deed or instrument of appointment, without any knowledge or concurrence on his part.

A use may be disclaimed by parol (3 Co. Rep. 27, 4 Mann. & Ry. 191, n.); and

expressly introduced into it for the use of the public and the witnesses to the deed (vide supra, 393, n.).

[457] It is well known that a similar clause was constantly inserted in old deeds and charters at the close thereof, beginning with the words "hiis testibus," and thence generally called "the hiis testibus clause," in which the names of the persons present who heard the deed read by the clerk were written, not by themselves, but by the clerk who prepared the deed. Spelman, in his Glossary, p. 228, traces out the variations in the form of the clause, at different periods of our history; and Madox, in the "Dissertation" prefixed to his Formulare Anglicanum, goes more fully into the matter; and, in the work itself, gives numerous instances, which, it is impossible to read, without being satisfied that the sense requires that the witnesses whose names are inserted in the hiis testibus clause, must, of necessity, have known the words preceding it, or, in fact, they would have witnessed nothing at all. Take, for example, among many, that numbered 312. "And that this my gift grant and confirmation may remain firm for ever, I have confirmed this present charter with the impression of my seal, hiis testibus," &c., or again, No. 631. "And for the greater security of my obligation, I have made oath, and put my seal to this present writing, hiis testibus," &c. Who can doubt, for a moment, that these witnesses, either actually read, or heard read over to them, the words of the deed immediately preceding their names, and that the introduction of that preceding clause, had no other object or purpose; and this practice continued down to the reign of Henry VIII., as appears on the authority of Lord Coke (2 Inst. 78), who states the practice then began, of separating the attestation from the deed itself, and for the witnesses to subscribe their own names to it, either at the bottom of, or indorsed on, the deed (b).

But that the clause, "in cujus rei testimonium," so long [458] as it was found at the close of the deed itself, never formed part of the deed itself, is evident from Sheppard's Touchstone (page 55), where he says, "A deed is good, albeit these words in the close thereof in cujus rei testimonium, sigillum meum apposui' be omitted," citing the authorities which shew it is no more, in fact, than,-what it imports to be, -the very attestation of the deed which has preceded it.

There is, therefore, no reason why the word "witness," written immediately after this testimonium clause in the case now under consideration, should not be considered as incorporated with it, and as calling the attention of the witnesses to all that had preceded in the testimonium clause. On the contrary, there is every reason why it should have that effect. The bare inspection of the fac-simile, set out in the appendix to the case of the defendant in error, shewing as much; and the sense and context also proving, that it must have been written for that very purpose, and no other. And this appears to me to be the answer to the argument on the ground of the danger which is apprehended if the witnesses must necessarily be supposed to be conusant of the contents of the deed; for the witnesses are not supposed to be conusant of the contents of the deed, but of the testimonium clause only, which is introduced for their express use, and for that express object and purpose.

If all the particulars of the solemnities required by the instrument creating the power, were formally enumerated in this will, just before the testimonium clause, and therein stated to have been performed; and if the three witnesses had signed their names beneath the word "witness" immediately subjoined to that clause, it could not, I think, have been denied that such attes-[459]-tation was sufficient, whilst it is admitted that if the very same particulars were repealed in a separate attestation at a small distance below the will, and such attestation was signed by the very same witnesses, the latter attestation would be complete. This would be rather struggling for a formal, than a substantial, distinction, and would be in direct opposition to the acknowledged maxim in the construction of all instruments, namely, "ut res magis valeat quam pereat" (a). And further, so far is it from being a rule of law that

though the 27 H. 8, c. 10, has annexed the seisin to the use, that statute contains nothing which purports to affect the disclamability of the use. It would therefore seem that an use, though executed, may still be disclaimed by parol, and that a disclaimer, so made, will defeat, ab initio, the statutory seisin.

(b) Vide supra, 419, n.

(a) This maxim would apply to the deed creating the power; but upon the execu tion of the power the question is simply, which of the two estates contemplated by

you may not, in the attestation to a deed, look back to that which is found at the close of the deed itself, that, on the contrary, in most of the cases which have been relied on by the defendant in error, express reference has been made to the close of the deed itself (b). Thus in Moodie v. Reid, the power is directed to be executed "by will signed and published in the presence of and attested by two or more credible witnesses," and there are found at the end of the will these words, namely, "these my last bequeathes, signed by me," and immediately beneath the word "witness follow the names of the two witnesses. Now, upon this state of facts Gibbs C. J. says (c), "Here, the witnesses have clearly attested the signing. The question is, whether they have attested the other formality of publication." But how does it appear that they have attested the signing, except by looking [460] back to that which is inserted in the close of the will itself, and importing it into the attestation?

Again, in Stanhope v. Keir, a direct reference is made to the words which are inserted in the will. The will concludes, "This is my last will and testament, made and signed, &c." The words at the bottom of the will are, "in the presence of ;" and Sir John Leach V. C. said he could not assume more from the attestation than that the witnesses saw Mrs. Keir sign the instrument (a), and held the execution bad, the power being directed "to be signed and published" in the presence of, and attested by three witnesses. But in that case, as in the former, the court look back to the statement of the testatrix contained in the will itself in order to see what it is that the witnesses attest. And, lastly, the authority of Sir John Leach, M. R., in Buller v. Burt, is express to the very point,-that where the word "witnesses," without more, is used in the attestation, it affirms that all has been done in the presence of the witnesses, which has been stated in the body of the deed.

It appears, therefore, upon the authority of these cases, that the courts do look beyond the general words of attestation,—whether it be "witness" or "in the presence of,"-to the concluding clause of the will itself, to discover what it is that the witnesses do attest; and in the present case, if such reference be made, I think it appears, upon the face of the will, that the witnesses do attest the signature, sealing, and publication of the will; which are all the solemnities prescribed by the settlement, for the execution

of the power.

For these reasons, the opinion which I offer humbly [461] to your lordships is, that, under the particular circumstances of this case, the power is well executed.

LORD LYNDHURST C. The question in this case is, whether the will of L. H. Skynner was a good execution of the power contained in her marriage settlement. The power required that the will should be signed, sealed, and published, by her, in the presence of, and attested by, three or more credible witnesses. The will is set out in the special verdict; and it is found to have been signed, sealed, and published, by her, in the presence of the three witnesses named therein, and attested by them, and that their attestations are in manner and form as stated in the said instrument. The will concludes thus :-"I declare this only to be my last will and testament. In witness whereof, I have, to this my last will and testament, contained in one sheet, set my hand and seal, the 12th day of September." Then follows the signature of the testatrix at the bottom of the page; and, at the top of the following page, it goes on thus: "in the year of our Lord, 1789." The signature is then repeated; and on the side, in the usual place where witnesses sign, is the word "witness"; and the names of the three witnesses are subscribed thereto.

the donor of the power-that of the appointee, or that of the party intended to be benefited, in the absence of a strictly formal appointment-is to subsist, and which is to perish.

(b) Vide supra, 393, n.

(e) It is not impossible that this very learned judge may have made the uncalledfor and extrajudicial concession here referred to, without adverting to the use which might afterwards be made of it. It may, however, be observed that many of the positions attributed to him, could hardly have proceeded, even in moments of inadvertence, from so very eminent a lawyer.

(a) Q. d., "taking it most favourably for the appointee, and assuming from the attestation that the witnesses saw Mrs. Keir sign the instrument, he would not assume more," &c. The words in italics were probably omitted by the reporter, as being implied in that which is stated.

If this question were res integra, entirely new, I think your lordships would have felt very little difficulty in deciding it. The will is to be signed, sealed, and published, in the presence of, and attested by, three credible witnesses. It was, in fact, signed, sealed, and published, in the presence of the witnesses. It is so found by the special verdict; and they subscribed their names to it, attesting it as witnesses. I think if this had come before your lordships unaffected by previous decisions, you would have been disposed to consider this a sufficient execution of the power; and the more so, as under the statute of frauds, which requires that all devises shall [462] be in writing and signed by the testator, and shall be attested and subscribed in the presence of the devisor by three or more credible witnesses,-it has been held that an attestation containing only the words "sealed and delivered by," &c. (omitting the word "signed ") is a sufficient compliance of the statute (a)1.

But, it is contended that the question is controlled by previous decisions; and it becomes necessary therefore to consider how far they apply to, and govern, this case.

The first, and leading authority, and upon which, in fact, all the others depend, is that of Wright v. Wakeford. In that case the power was to be executed by the donees, testified by any writing, under their hands and seals, attested by two or more credible witnesses. The attestation contained the words "sealed and delivered," and nothing more; only two of the requisites were attested, the signing was omitted. It was contended that the word "sealed" implied that the parties who put their seals, also put their hands to the instrument; but the majority of the judges were of opinion that it did not so imply, according to the true interpretation of the word "sealed.” This decision turned therefore entirely upon the construction of the clause of attestation; and, undoubtedly, if two of the requisites were inserted, and the third omitted, the execution could not be correct. The signature of the witnesses to the memorandum, was an attestation to the sealing and delivery only. The cases of Doe d. Mansfield v. Peach, Wright v. Barlow, and Doe d. Hotchkiss v. Pierce, were decided entirely on the authority of Wright v. Wakeford, and do not appear to me to carry the rule further. Notwithstanding the doubts which have been entertained as to the propriety of the decision in Wright v. Wakeford, [463] and the repeated expressions of regret by very learned judges that that case had been so decided, still, as it has been so frequently acted upon, and for so long a period, I should have felt it my duty, if this case had not been distinguishable from it, to recommend to your lordships to adhere to that decision, and to pronounce the execution of the power, in the present instance, to be insufficient (a)2. *Certainty as to the rules affecting property, and its disposition, is of far more consequence than the consideration of what the rules should be; because the transactions of mankind are regulated accordingly. But the question, here, is, not, as in Wright v. Wakeford, whether a memorandum of attestation, mentioning some of the requisites and omitting others, is valid, but whether the general memorandum is, in this case, sufficient. And, first, it is worthy of observation, that the language of the power, and the grammatical construction of it, are not the same in this case as in Wright v. Wakeford. There, the power was to be executed by any writing under the hands and seals of the donees, attested, &c. The writing under hand and seal,--which may be considered as a description of the completed instrument,- was to be attested. But, in this case, the power is to be executed by a writing to be by the donee signed, sealed, and published, in the presence of, and attested by, three or more witnesses. The word "attested" in grammatical construction relates only to the word "writing," not, as in Wright v. Wakeford, to the whole description, viz. "writing under hand and seal." It would not, therefore, I think, necessarily follow, that because the insertion of the words "sealed and delivered" in the memorandum of attestation, might be considered requisites in the former case, it would also be necessary in the present (b).

[464] In Doe dem. Mansfield v. Peach, and Wright v. Barlow, the words are the same as in Wright v. Wakeford. Independently, however, of this distinction, and without relying upon it, there is no case which has decided that a general attestation is not sufficient; and I see no reason why, if there be a general attestation, and the witnesses

(a) Vide supra, 440 (d).

(a) Many have probably acted upon the decision in Wright v. Wakeford; perhaps many more upon the principle on which that decision proceeded.

(b) Vide supra, 406, n.

prove (a) that all was done, such a general attestation should not be sufficient. In this case the attestation follows immediately after the testimonium clause, and may, I think, be considered as referring to, and connected with it (b).

In Moodie v. Reid, the testatrix concluded her will thus: "These my last bequeathes, signed by me, this 4 February 1812. Sarah Moodie. Witness B. H. J. H." Gibbs C. J. in that case said, "Here, the witnesses have clearly attested the signing." But the attestation was general, and they could have only been considered as attesting the signing, by connecting the attestation with the words that immediately preceded it, "these my last bequeathes, signed by me" (c).

Again, in Stanhope v. Keir, before Sir John Leach V. C., the will concluded thus: "This is my last will and testament, made and signed, on, &c., at, &c." It was signed by the testatrix, Eugenia Keir. The attestation was as follows: "In the presence of," then followed the names of the witnesses. The Vice-Chancellor considered this a sufficient attestation of the signing; which could only be, by reference to the testimonium clause.

The case of Buller v. Burt before the same judge, when Master of the Rolls (4 Ad. & E. 15, 6 N. & M. 281), is to the like effect.

In that case the deed concluded as follows: "Signed and sealed at," &c., on, &c., "by L. Smith" (the signa-[465]-ture of the grantee), "witness," then followed the names of the witnesses. The Master of the Rolls said, that as the general word "witnesses" can affirm no more than the deed states, there is in this case no attestation of that essential part of what is required for the due execution of the power-the delivery of the deed, the power therefore is not well executed. In a former part of his judgment he speaks of the "body of the deed," but it is obvious, I think, that he means the testimonium clause. In using the terms "body of the deed," he uses them as distinguished from the attestation. In this, therefore, as in the former case, he seems to have considered a reference to the testimonium clause legitimate.

In the present case the reference would embrace all the requisites for the due execution of the power, and render it complete. These considerations lead me to the conclusion that the power was properly executed; and I recommend your lordships, therefore, to reverse the judgment of the court of Exchequer Chamber; the effect of which will be to affirm the judgment of the court of Queen's Bench; and in following this recommendation, your lordships will conform to the opinion, contained in the paper upon your lordships' table, of the Chief Justice of the court of Common Pleas, and the majority of the judges who were consulted by your lordships upon this

occasion.

LORD BROUGHAM. My lords, I entirely agree in the course recommended by my noble and learned friend. If this case had been, and this we all of us felt, I am sure, during the whole of the argument, if this case had been in terms the same as, and was not distinguishable by any material difference from, the case of Wright v. Wakeford, followed by the two other cases of Doe dem. Mansfield v. Peach and Wright v. Barlow, which were in [466] terms the same with Wright v. Wakeford, as regarded the material parts of the power, and the facts of the execution, in that case we should have been very reluctant indeed to have run counter to that authority, and for the reason assigned by my noble and learned friend. I hardly know a case which has excited at different

times more remark than Wright v. Wakeford. It has been again and again questioned; it has been again and again criticised by the learned judges. It cannot, therefore, be said to have been, at any time, a case that commanded any thing like the entire concurrence of Westminster Hall. Nevertheless for the reasons assigned, judiciously and soundly assigned, by my noble and learned friend, I should have been the last to recommend a departure from that case over-ruling it, and adopting the contrary principle of decision; because it is perfectly true, as was stated by my noble and learned friend, that in this, as in all other cases, where a decision has been held to make the law, where it has been acted upon, as this has been, in other cases, two of which particularly have been mentioned by my noble and learned friend, when it has been acted upon by professional men, has been assumed to be the law by professional

(a) The attestation will thus be made good by extrinsic evidence, produced on some trial, or upon a bill to perpetuate testimony.

(b) Vide supra, 393, n.

(c) Ibid., 393, n., 395, 420 (b).