3 CURT. 607. KBIGWIN V.

KEIGWIN 841

[607] KBIGWIN v. KEIGWIN. Prerogative Court, July 12th, 1843.—A party

shewed a paper to two persons present at the same time, and requested them to
sign it; both persons observed the signature of the party affixed to the paper,
and both subscribed it in her presence. This paper, being a will, held to have
been duly executed. Alterations on the face of a duly executed will held, upon
the circumstances, to have been made before execution.
[S. C. 7 Jur. 840. Referred to, Wright v. Sanderson, 1884, 9 P. D. 160.]
This was a business of proving, in form of law, the last will and testament of
Elizabeth Keigwin, who died on the 9th of April, 1842, leaving a brother, a sister, a
nephew, and two nieces.
The will in question was dated the 11th of December, 1839; it was signed by the
deceased, and subscribed by two persons as witnesses, but there was no attestation
clause: there were certain alterations on the face of the will: by it the brother was
appointed sole executor.
The subscribing witnesses having, in accordance with the practice in the registry
of this Court where there is no formal attestation clause, been applied to to make
affidavit of the due execution of the will: the facts, as stated by them, were of such
a nature that probate could not be granted in common form; the paper was accord-
ingly propounded by Mr. Keigwin, the brother and executor, in an allegation, which
pleaded, first, that the deceased gave instructions for the drawing up of her will to
Mr. F. Hichens, a friend, whom she was in the habit of consulting on her affairs.
That pursuant thereto the will in question was drawn up by Mr. Hichens, and was
delivered to the deceased a few days prior to the 11th of December, 1839; that the
last-mentioned date was inserted in the said will by the desire of the deceased, who
stated to [608] Mr. Hichens, as her reason for so desiring, that she should have some
carpenters at work in her house on that day, and that they could attest the execution
thereof.
Second, pleaded that the deceased, after the will had been so delivered to her, and
previous to the execution thereof, spoke to Mr. Hichens respecting the same; and he
by her direction made certain alterations therein [these were specified]. That, having
made such alterations, Mr. Hichens left the said will with the deceased, telling her to
put her name or initials in the margin opposite the alterations.
Third, pleaded that the deceased set and subscribed her name at the foot of the
said will on the 11th of December, 1839, and her initials opposite certain of the said
alterations.
Fourth, pleaded that on the 11th of December, 1839, on which day the deceased
had previously appointed two persons to come to her house to do some carpenter's
work, she came into the room in which such two persons were at work, she having a
pen.and inkstand in her hands, and then and there produced her said will, signed by
her, to the two persons, and desired them to attest the same, saying, " I want you to
sign your names to this paper;" that at her request such two persons signed their
names thereto in her presence, and in the presence of each other. That although the
will was so folded as to conceal the contents thereof, the signature of the deceased,
apparently fresh made, was plainly visible and was seen by the two witnesses.
Mr. Hichens deposed to the following effect:—" About two years before the death
of the deceased [609] she produced to me a copy of a will of a relation of hers, under
which she had derived some property, and requested me to prepare a similar will for
her; I did so, and delivered the will I had so prepared to her. I recollect that shortly
•after I had given the will to the deceased she on one occasion spoke to me about it;
I cannot call to my recollection whether it was then signed by her or not; I have
tried to recollect this, but I cannot; my impression certainly is that the said occasion
was prior to the execution of the will, but I really cannot swear that it was so; I did
not observe that the will had been then signed; she asked me to make some altera-
tions in it [the witness here identified the alterations on the face of the will as those
made by him on that occasion]. I made these alterations in her presence. I believe
the deceased put her initials in the margin of the will opposite the alterations."
The two subscribing witnesses deposed to the following effect:—That they " are
E. & A. in.—27*
842 3 CURT. 610.

carpenters, and were at work in the house of the deceased on the 11th of December,
1839; that she on that day brought a paper into the room where they both were,
having also in her hands a pen and inkstand [they both identified the will propounded
as the paper]; that addressing them she said, ' I want you to sign this paper,' and
pointed out the place where they were to sign ; that the paper was so folded that they
only saw the signature; that they have no doubt whatever as to the fact of the
signature of the deceased being affixed to the paper at the time when they subscribed
it; that they subscribed the paper in the presence of the deceased and of each other;
[610] they did not recollect whether the deceased pointed out her signature to them
as being her name; but were both positive that she did not say anything in particular
about her handwriting."
The cause came on for hearing.
Addams in support of the will.
Eobertson contra.
Judgment—Sir Herbert Jenner Fust. The deceased in this case gave instructions to
a gentleman named Hichens, or perhaps rather requested him, for he is not a pro-
fessional man, to draw up a will for her, which accordingly he did; and by her special
desire he inserted a date as of a day on which, as she stated, she intended to
execute it.
Mr. Hichens states the transaction thus generally : that he prepared the will and
delivered it to the deceased; that she afterwards produced it to him for a particular
purpose, but he cannot recollect whether it was then signed by her or not; he has
tried to recollect this, but cannot; his impression is that the occasion on which this
happened was prior to the date of the execution of the will; but he cannot swear that
it was so. He says the deceased asked him on that occasion to make certain altera-
tions, and he did so in her presence. Now, looking at those alterations, and the places
in the will where they are made, and that Mr. Hichens was the person who made
them, it seems scarcely possible, if the deceased had in fact signed the will at this
time, [611] that her signature could have escaped the observation of this witness.
Mr. Hichens further says that he believes the deceased put her initials in the margin
of the will opposite the alterations. Now this is the only witness who can speak to
the facts on this point; and on his evidence the result, in my opinion, is, that at the
time when these alterations were made the will was not signed by the deceased. The
two other witnesses, the parties who attested the will, cannot speak as to these altera-
tions. Their evidence is shortly this: they were at work in a room in the deceased's
house; she brought this paper into that room, and, addressing them both, said,
" I want you to sign this paper/' and pointed out the place where they were to sign ;
they both observed her name signed thereto; they have no doubt whatever that the
paper produced to them by the deceased had been signed by her; but they do not
recollect that she pointed out the signature to them as being her name; they are sure
she did not say anything in particular about her handwriting. The question comes
to this, whether this will has been duly executed according to the requisites of the
statute; the deceased did produce this paper, having her signature affixed to it at the-
time, to two witnesses present at the same time; and the two witnesses did attest
it in her presence; was this a sufficient acknowledgment? l a m clearly of opinion
that it was; it is not necessary that the party should say in express terms " that is.
my signature;" it is sufficient if it clearly appears that the signature was existent
on the will when she produced it to the witnesses, and was seen by the witnesses-
when they did, at her request, subscribe the [612] will. On these circumstances, I
hold that this paper has been sufficiently executed.
Then as to these alterations, I have said, I think, there is sufficient evidence to>
enable the Court to hold that they were made before the will was executed.
I therefore decree probate of this paper with the alterations; it is, however, a*
proper case for giving the costs out of the estate.