
    Richmond.
    Rosser &c. v. Franklin.
    1849. April Term.
    
    (Absent Daniel,
      
       J.)
    1. It is not necessary that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature; or even that the instrument is his will. It is enough that he should acknowledge in their presence, that the act is his, with a knowledge of the contents of the instrument; and with the design that it should be a testamentary disposition of his property.
    If the paper has been signed by the testator, such an acknowledgment is a recognition and ratification of his signature. If Ms name has been subscribed to the paper by another person, such acknowledgment is a recognition and ratification of the signature as having been made for him, in his presence, and by his direction.
    3. A testamentary paper appears on its face to be signed with the name and mark of the testatrix, and subscribed with the names of two attesting witnesses, and with the name and mark of a third. The two first witnesses are dead, and their handwriting is proved. And it is proved that the body of the will, and the name of the testatrix, and of the last -witness, are all in the hand-writing of the first witness; the name of the last witness having been so written, at his request: That the witnesses attested the will at the request of the testatrix, and in her presence, at the same time. It was a question whether the testatrix made her mark before the attestation of the paper by the witnesses or immediately after the last had made his mark, and in their presence. Held :
    1. If the testatrix made her mark after the attestation of the witnesses; and her so doing was an afterthought, and not in pursuance of any design conceived prior to the attestation ; but that at the time she acknowledged the paper, there was no design on her part to affix her mark to it; then the making her mark was a work of supererogation, and did not affect the validity of the previous acknowledgment.
    2. The fact whether in the order of time, the testatrix made her mark before or after the subscription of the witnesses, is not material, where the whole transaction must be regarded as one continuous, uninterrupted act, conducted and completed within a few minutes, whilst all concerned in it continued present, and during the unbroken, supervising, attesting attention of the subscribing witnesses.
    In May 1846, a paper purporting to be the will of Jane Wood deceased, was offered for probat in the County court of Campbell, by Lewis Franklin, the nominated executor therein, and its admission to probat was opposed by John Rosser the son-in-law, and Patsy Depriest, the daughter of Mrs. Wood. The Court admitted the paper to probat, and the contestants appealed to the Circuit court of Campbell.
    
    The paper, after disposing of the property of the testatrix, all of which was personal, and was given to her daughter Mrs. Franklin and her children, concluded as follows: “In testimony, I have hereby affixed my name and seal, this 5th of February 1830.
    her ******** Jane + Wood, *seai.$” mark.
    
      Ro. R. Neighbours,
    
    
      Lindsay K. Cralle,
    
    his
    
      Daniel + Driskill."
    
    mark.
    
      It appeared in proof, that the subscribing witnesses, Robert R. Neighbours and Lindsay K. Cralle, were dead; and that their signatures were in their respective handwriting. It was also proved that the will was in the handwriting of Neighbours, as was also the name of the testatrix Jane Wood, and the words “ her mark;” and the name of the witness Daniel Driskill, and the words “his mark.” The witness Driskill was examined. He stated, That the cross mark in his name was made by himself; that his name was written by Neighbours, by his request, and that he authorized his name to be subscribed to the paper. That he subscribed the said will as a witness at the request of Mrs. Jane Wood. At the time he signed the will, Mrs. Wood sent for him, and said she wanted him to sign this paper as a witness for her, holding in his hand the paper propounded as the will of Mrs. Wood, and that the paper he held was the same paper. That at the moment she exhibited the paper and asked him to witness it, she did not say what it was, but told him in a few minutes afterwards, that it was her will. He regarded Mrs. Wood as being of sound mind, and capable of disposing of her property by will. That Neighbours, Cralle and Mrs. Wood were then present, and Mrs. Wood was standing by him when he attested the paper. That Neighbours and Cralle witnessed said will at the request of Mrs. Wood, and in her presence ; and they subscribed their names before he did. That when Mrs. Wood sent for him to sign the paper, she had not then made the mark in her name; and he was not certain that her name and the words “ her mark” were then written, but rather thought they were. That his name was written and he had made his mark as an attesting witness to the will, before the testatrix had signed it. After he had made his mark, he handed the pen to her, and she turned to Neighbours and said, “As you have written my name I will make my mark.” She then made her mark to the name which had been written by Neighbours. The will was not read in his presence. Witness stated he at one time thought he witnessed the will in the year 1829, but was then satisfied it was in 1830, in the fall of the year as he thought. He thought at one time it was in the spring, but on reflection, thought it was in the fall.
    Several witnesses were examined to prove declarations of Mrs. Wood, made subsequent to the execution of the will, as to the disposition she had made or intended to make of her property, but the testimony has no bearing upon the question upon which the case turned in this Court.
    The Court below admitted the paper to probat; and Rosser and Mrs. Depriest applied to this Court for a supersedeas, which was allowed.
    The case was argued orally in this Court by Bouldin for the appellants, and Patton for the appellee; and it was argued in writing by Garland for the appellee.
    
      Bouldin.
    
    Since the act of 1835, all written wills whether of real or personal estate, must be executed under like solemnities; and there can be neither difficulty nor doubt, as to what those solemnities are. The will must be signed by the testator or testatrix, “ or by some other person in his or her presence and by his or her direction,” and unless wholly written by himself or herself, must be attested by two or more credible witnesses subscribing their names in his or her presence.
    The requisites of this statute are too clear for doubt ; attestation is not in all cases necessary, but when necessary, at least two witnesses must attest every important requisite of the statute. I do not mean that two witnesses must swear before the Court of probat to the compliance by the testator with every important requisite ; but there must be such testimony adduced as will satisfy the Court that at least two witnesses did in fact attest every important requisite of the statute.
    When the will is signed for the testator or testatrix by another person, one important requisite of the statute is, that it shall be signed “in his or her presence, and by his or her direction,” and in such case attestation is always necessary ; and the act of signing, in the mode prescribed, must be attested by at least two subscribing witnesses.
    In the case before the Court, it is not pretended that any part of the supposed will of Jane Wood deceased, either the body or the signature, was written by herself. She, it is proved, was wholly illiterate, could neither read nor write, and the paper in question was wholly written and signed by another person. The first question then, which presents itself, is, whether it has been proved by any testimony in the cause, that the paper was signed “ in her presence and by her direction,” and that such signature was in fact attested by two subscribing witnesses. This proof is indispensable to the legal validity of the will. Has it been furnished ?
    Waiving for the present the question whether the paper was not unsigned at the time of attestation, and treating it as a signed paper, I insist that there is no proof in the record that Mrs. Wood requested any one to sign it for her, or that it was signed in her presence, or that at the time of attestation she acknowledged the signature to the paper, or that it was her will. In the absence of such proof, can a compliance with these vitally important requisites of the statute be inferred from any evidence in the cause ?
    I am aware that this Court has inferred a compliance with the statute by proof of the acknowledgment, even of an illiterate testator, that a paper signed for him by another person is his will; and in so doing, in my humble judgment, they have gone far enough towards a repeal of the statute ; but far as the Court has gone it has 
      not hitherto pushed this doctrine of inferring due execution in the absence of proof, to the extent required by the exigencies of this case. It has never admitted such a will to probat, without, at the least, an acknowledgment by the party of the signature, or that the paper was his will.
    What are the facts in this case? We have proof of the handwriting of two deceased witnesses to the will, by one of whom it was wholly written and signed; and we have the oral testimony of a third and surviving witness, detailing the circumstances under which the paper was attested both by the deceased witnesses and himself. He deposes that all the witnesses attested the paper in the presence of Mrs. Wood and of each other, but that Mrs. Wood merely requested them to sign the paper as witnesses, holding it in her hand, without acknowledging the signature thereto, and without stating what the paper was. On this state of facts, without any sort of express acknowledgment of the will by the testatrix, the Court is asked, by building up inference upon inference, to declare that the terms of the statute have been duly complied with. From a request by an illiterate woman to three persons to sign a paper, as witnesses, you are to infer in the first place that she intended thereby to acknowledge the signature to the paper, and from the acknowledgment thus inferred, to infer the additional fact that the signature was written “ in her presence and by her direction;" thus, against the plain words and spirit of the statute, substituting an admission for an act, the presumptive admission of an illiterate testatrix,. for proof per testes as required by the statute. I say against the spirit as well as the letter of the statute, for its manifest object was to protect illiterate persons from imposition by requiring the witnesses to know the fact that the name of the decedent was signed “ in his or her presence, and by his or her direction;" and to infer such execution from testimony like that adduced in this case, would he to deprive the testatrix of the protection designed to be secured to her, and in effect to repeal the statute.
    It would indeed he not a little instructive to trace with some care, the progress of judicial decision on this question. The enquiry would serve to illustrate the danger of any departure from the plain requirements of a written statute.
    It will be found that in the early decisions in England, it was for a long time considered a vexed question whether any sort of acknowledgment would dispense with actual execution in presence of witnesses. It was at length settled that proof of execution by acknowledgment was admissible; hut this first departure from the words of the statute was cautious and guarded. It confined the proof of execution by the acknowledgment of the party, to the acknowledgment of a fact, as contradistinguished from a conclusion of law. Thus they received proof that the party acknowledged his handwriting or signature, which is a fact, hut not that the paper signed was his will, which is a conclusion of law, depending often on many facts. They then went a step further, and from an acknowledgment by a testator that an instrument was his will, inferred an acknowledgment of the signature. They seem, however, to have come to this conclusion most reluctantly, and with reiterated disapprobation of the principle involved in it. But it was left for this Court to decide, that Lord Hardwicke was wrong when in Ellis v. Smith, 1 Ves. Jr. 11, he said “ consequence is not to be built upon consequence, in cases of this nature;" and we have so far deviated from the statute, as to decide that an acknowledgment by a testator, that a paper signed for him by another person, is his will, is sufficient proof of due execution. This is far enough in deviation from the statute, and is the utmost extent to which this Court has yet gone ; whether it will go further remains to be seen by the result of this case. Mr. B. then referred to the English decisions, to shew that in the early cases, the acknowledgment was confined to the signature or handwriting of party. In Grayson v. Atkinson, 2 Ves. Sr. 454, the Lord Chancellor said it had long been “ vexata questio” whether an acknowledgment of the handwriting or signature was sufficient, but he held that it was. And the same principle was settled in the earlier case of Stonehouse v. Evelyn, 3 P. Wms. 252. These cases, however, did not go so far as to hold that a general acknowledgment of the paper as a will, would be sufficient ; and in the case of Gryle v. Gryle, 2 Atk. R. 176, Ld. Hardwicke was of opinion that a general acknowledgment by a testatrix that the paper was her will, without an acknowledgment that the name to it was her signature or in her handwriting, was not a compliance with the statute. The same distinction is taken in the case of Lea v. Libb, referred to in a note to the case of Gryle v. Gryle.
    
    In the more recent case of Ellis v. Smith, 1 Ves. Jr. 11, the Judges seem to go further, and to hold a general acknowledgment of the paper as a will to be sufficient. It was done reluctantly however, and all the Judges professed to yield to authority, saying, that if it had been “ res integra,” their judgment would be different. Lord Hardwicke said, (p. 16,) “I agree with all the learned persons who spoke before me, that if it had been ‘ res integra’ I should doubt; but now it is ‘res judicata,’ and ‘ stare decisis’ seems wisest.” There is no statement of the facts of this case in Vesey’s report of it; but from a report of the same case in 7 Bacon’s Abr. 310, it will be seen that it was not a case of general acknowledgment, but a very special acknowledgment of the name, the writing, and the seal of the party, putting his hand on the latter, at the time of acknowledgment. This will account for the opinion of the Judges that the authorities were controlling in ‘such a case. There had been in truth, no previous decision that a general acknowledgment of the will would he sufficient. On the contrary, such an acknowledgment had been condemned by Lord Hardwicke himself, in Gryle v. Gryle, as insufficient.
    
      Westbeech v. Kennedy, 1 Ves. & Beame 362, was the first case in which the general acknowledgment was held sufficient; and it was decided without authority; and no reason for the judgment given. In none of these cases, however, was the will wholly written and signed by another person than the testator; and in Grayson v. Atkinson, Lord Hardwicke repudiated the idea of applying the doctrine to such a case. Such was the state of the law in England, when the question arose for the first time in this Court, in the case of Burwell v. Corbin, 1 Rand. 131. That case differed from all the English cases in this, that the name of the testator was signed for him, by another person. One witness proved actual execution of the will in his presence ; and the other proved a subsequent acknowledgment by the decedent, that the paper was his will. Held by three Judges, in a Court of four, (Roane, J. dissenting,) that the will was not duly executed, on the ground, that the mere acknowledgment by the decedent, that a paper signed for him by another, was his will, was not a compliance with the statute. It is true that this decision has been doubted and disapproved in subsequent cases, and the views of Judge Roane sustained. But Judge Roane’s opinion required that there should be a distinct acknowledgment either of the will or the signature; and no case which has since occurred, has gone further.
    
      Mr. B. then went into an examination of the cases of Smith v. Jones, 6 Rand. 33; Dudleys v. Dudleys, 3 Leigh 436; and Clarke v. Dunnavant, 10 Leigh 13; to shew that in each case there was either a direct acknowledgment of the paper as a will, or of the signature of the party; and he insisted that in no case in England or in this Court, had any will been established without such acknowledgment. He referred also, to case of Waller v. Waller, 1 Gratt. 454, 476, to shew that Judge Allen concurred with the English Judges, and with the majority of the Court in Burwell v. Corbin, in condemning this deviation from the statute. The learned Judge said that the force of the evidence, in support of a will, " was somewhat impaired when the Courts held that it was not necessary the subscribing witnesses should see him sign, provided he acknowledged the signature to the paper they attested.” However doubtful may be the propriety of these decisions, I do not ask the Court to unsettle them, and to retrace its steps. It is more easy to commit than to correct an error. “ Facilis decensus averni“ sed revocare gradum, hoc opus, hic labor est.”
    But will the Court go further in this deviation from the statute, condemned as it has been, by learned and able Courts and Judges ? Will it dispense altogether with actual acknowledgment, general or special, and hold a simple request to witnesses to attest a paper, to be a compliance with the statute? and that, too, not only without authority, but against authority. I say against authority, for the precise question has been adjudicated in the English Ecclesiastical courts, in cases arising under the statute of 1 Victoria, which is very similar to our own. In the goods of Rawlins, 7 Eng. Ecc. R. 129; In the goods of Harrison, Ibid. 340-1; in both of which cases it was held that a request to witnesses to attest a paper was not equivalent to an acknowledgment of the signature.
    I have thus far considered the case as if the paper had been actually signed as an executed will, prior to the attestation of the witnesses. But such was not the fact. The signature was not complete at the time of the attestation ; and there was no attestation after the signing was completed. It will be observed, that the will was prepared with a blank between the Christian and surname of the testatrix, to be filled by herself with her mark; and it was in fact so executed. Now a mark, although not at all essential to the complete execution of a will by an illiterate person, becomes essential, if intended as a signature; and when so intended, is of itself a sufficient signature. Harrison v. Harrison, 8 Ves. R. 186; Addy v. Grix, Ibid. 504; Clarke v. Dunnavant, 10 Leigh 13, Judge Parker's opinion; Harrison v. Elvin, 43 Eng. C. L. R. 658; In the goods of Bryce, 7 Eng. Ecc. R. 128. But whether the signing be by mark or by name only, in order to be a valid signing under the statute, it must, in the language of Judge Allen in Waller v. Waller, 1 Gratt. 454, 481, “ be such as upon the face, and from the frame of the instrument, appears to have been intended, to give it authenticity. It must appear that the name so written was regarded as a signature, that the instrument was regarded as complete without further signature : and the paper itself must shew this. Was this will regarded as complete before the mark of the testatrix was affixed to it ? On the contrary, was it not prepared to be executed by a mark ? was it not in fact so executed ? and would it not have been on its face manifestly imperfect without the mark ? Until that mark was affixed to the paper, it was manifestly in progress only, it had not passed from the hands of the testatrix as a complete instrument ; for until all was done which the testatrix designed to do to give the instrument authenticity, (however unnecessary in point of law the additional act might be,) the will was unexecuted. 1 Jarmin on Wills 93, &c. &c.; Right v. Price, Doug. R. 241.
    So far indeed has this doctrine been carried, that a will, which would be good without attestation, will be rejected if it contain an attestation clause not subscribed by witnesses, unless the presumption against the instrument on that account be repelled by proof. Beatty v. Beatty, 2 Eng. Ecc. R. 60; Waller v. Waller, 1 Gratt. 454; where Judge Cabell puts his opinion on that ground alone. “It is manifest” (he says) “from the paper itself, that he intended something further to be done; that it should be ' signed and acknowledged in presence of’ witnesses.” It is equally manifest in the present case that the testatrix “ intended something further to be done;” that in addition.to her name, the blank left for her mark should be filled (as it was in fact filled) by her mark. It was incomplete then until completed by the mark: and after such completion there was no attestation.
    A paper acknowledged in presence of witnesses, and attested by them, before it is signed by the testator, is not a will duly executed under the statute, although both the attestation and signing may occur at the same interview, and the one immediately precede the other. In the goods of Olding, 7 Eng. Ecc. R. 341; In the goods of Byrd, Id. 391; in both of which cases the precise question arose and was adjudicated. The witnesses must attest a perfect, not an imperfect instrument ; a will signed by the party, not a paper without a signature.
    This question, in the form suggested, has not been directly adjudicated by this Court; but from opinions expressed by the Judges at different times, it is manifest that had the question been presented, the decision of this Court would have been the same with the ecclesiastical decisions just cited.
    In Burwell v. Corbin, 1 Rand. 131, Judge Coalter says: “ They must attest a writing not a blank sheet; they must attest a writing signed, and not one unsigned.”
    Judge Brooke, in the same case, p. 148, says: “ It would not be contended that if it was attested before it was signed, it would be a good attestation, because it would let in the frauds intended to be prevented.”
    
      And Judge Roane, in the same case, though dissenting from the Court, evidently regarded actual and final signature, prior to attestation, as indispensably necessary. He asks, very emphatically, p. 158, “ is an unsigned paper the same with one that is signed?” and goes on to say, “ It is not easy to conceive a stronger circumstance of discrimination on the contrary, than that which exists between a complete and signed paper and one which is only inchoate and unsigned.” And I insist that it is not a paper wanting the final act of execution, not an “ inchoate and unsigned paper,” but that widely different instrument, a “ complete and signed paper,” that the witnesses are required by the statute to attest. So thought Judge Cabell also ; for in Dudleys v. Dudleys, 3 Leigh 443, he said: “ It is not usual for men to acknowledge papers either as deeds or wills, and to call on others to attest them before they are signed. Such a thing may happen, but when it is proved to have happened, the acknowledgment and attestation will be disregarded.” Judge Brooke, in the same case, p. 446, said: “ It must be admitted that a paper attested before it is signed is not a will under the statute ; that the statute requires the attestation of two witnesses after it is a perfect will.” In these views Judge Tucker concurred, Ibid. 449; Clarke v. Dunnavant, 10 Leigh 34-5. And in Waller v. Waller, 1 Gratt. 477, Judge Allen expressed the same opinion. He said, “ the attestation must be annexed or subscribed to a complete instrument, and to which when so subscribed no additions can he made."
    
    In this case a most important addition was made; the will was perfected by signature by mark, not before but after attestation; and there being no subsequent attestation, I submit, in the language of learned Judges now before me, “ that the acknowledgment and attestation will he disregarded;” and that the paper admitted to probat in this case “ is not a will under the statute.”
    
      
      Garland.
    
    If there had been but the two subscribing
    witnesses to this will, Neighbours and Cralle, can there be a doubt that this paper would have been admitted to probat as the last will and testament of Jane Wood, deceased? I cannot imagine that there would have been the slightest. Their respectability is fully established. Their handwriting is proved, and there is an entire absence of the slightest evidence of fraud. Upon what ground then could the probat have been resisted ? The Court of probat would have inferred all the necessary requisites from proof of the handwriting of these witnesses, they being dead. Hands v. James, Com. R. 531; Croft v. Pawlet, 2 Strange 1109; Jackson ex dem. Le Grange v. Le Grange, 19 John. R. 386. Upon this point I refer the Court to the remarks of Judge Parker in the case of Clarke v. Dunnavant, 10 Leigh 13, on page 22, and of Judge Tucker, in the same case, on page 30, as decisive of the question.
    But there is a third subscribing witness, Daniel Driskill, and he testified; and it is contended by the appellants’ counsel that so far from proving the due execution of the will, he disproves it.
    It is supposed that this witness proves that the mark of Mrs. Wood was made to the testamentary paper now before the Court, after the witnesses attested it, and that the will is therefore imperfect, or not executed according to the provisions of the statute; and in support of this position the counsel for the appellant relies upon a remark of Judges Cabell and Brooke, in the case of Dudleys v. Dudleys, 3 Leigh 436.
    Suppose the statements of the witness were all true, and not a mistake, as I shall in the sequel attempt to shew, I maintain that it does not, in the slightest degree, shake the claims of this paper to be regarded as a perfect and well executed instrument, according to any reasonable interpretation of the statute.
    
      Judge Lomax, in his treatise on the Law of Executors and Administrators, vol. 1, p. 23, gives an exemplification of an imperfect (which simply means an unfinished) will, drawn from the case of Selden v. Coalter, 2 Virg. Ca. 553; to which the Court is referred. To this section the Judge appends the following note: “ A distinction is to he found in the English Ecclesiastical reports between unexecuted and imperfect testamentary papers. A testamentary paper may be finished and complete, looking to the body of the instrument, as purporting to dispose of the testator’s whole property, and so on; still, however, it may be unexecuted, as for instance, by wanting the signature of the deceased. And when there is a mere want of execution in a paper, which is complete in other respects, the Court will presume, in England, that the testator’s intentions are expressed in such a paper, on its being satisfactorily shewn that the non-execution did not arise from abandonment of those intentions so expressed. The presumption of the law is there slight, in the case of a merely unexecuted paper.
    
    “The word imperfect, when applied technically to testamentary instruments, means that the document is, upon the face of it, manifestly in progress only, and unfinished and incomplete as to the body of the instrument. When a paper is imperfect in this sense of the word, not only as in the cases of unexecuted papers, must its being unfinished, be shewn to have been caused by the act of God, or to be justly ascribed to some reason other than any abandonment of intention by the testator, but it must also be clearly proved by the party setting up the instrument, upon a just view of all the facts and circumstances of the case, that the deceased had come to a final resolution in respect to it, as far as it goes; and the presumption of law against such an instrument, instead of being slight, as in the case of a merely unexecuted paper, is very strong and hard to be repelled. Where a paper is incomplete in the body of it, the Court must be fully satisfied by proof, 1. That the deceased had finally decided to make the disposition of his property expressed in the imperfect paper. 2. That he never abandoned that intention, and was only prevented by the act of God, from proceeding to the completion of the will.” And he refers to a number of cases.
    The testamentary paper now under consideration, has every attribute of a perfect paper, according to this distinction, and it only remains to consider whether it is to be rejected as an “ unexecuted" paper. I maintain, from the facts in this case, that this was a well executed testamentary paper, according to the most rigid interpretation of the requisites of the statutes.
    1. By the writing of the name of the testatrix, at the foot of the will, and at her request, before attestation.
    The affixing of a mark to the name of the testatrix was no more necessary to make the signature complete, than the affixing the seal. The signature was complete without it. The act provides “ so as such last will and testament be signed by the testator, or by some other person in his ' or her’ presence, and by his ' or her’ direction.” It does not prescribe that a testator’s signature, when made by another, shall he identified by a mark or any other sign. The mere fact of signing her name in her presence, and by her direction, fulfils every requisite of the act on this point.
    The proof is decisive, that all these witnesses attested after the name of Mrs. Wood was signed. The witness Driskill, says the will was prepared when he arrived at the house of the testatrix, and he thinks her name was signed to it before the names of the witnesses were written. He speaks of nothing being done to the paper after his arrival, hut the writing the names of the witnesses and the making his own and Mrs. Wood’s mark. This, taken in connexion with the intelligence of the two witnesses, and the presumption which the Court is authorized to draw, and will draw from these acts, both being dead, concludes the question.
    The will, upon its face, being perfect, and the execution complete, did the affixing of the mark, after the attestation, even if it be so, nullify the whole act? This would be bold ground to take in the present enlightened state of jurisprudence, and would be in direct opposition to the manifest intention of the testatrix.
    Is it not manifest that the testatrix, by making her mark, intended to “ make assurance doubly sure ?” She saw the name of Driskill written by Neighbours, and she saw Driskill make his mark. She may have supposed from this, that the making a mark was necessary to perfect the signature, and made her mark for that purpose. Is the idea then, for a moment to be tolerated, that the testatrix, in doing an act, superfluous in itself, was destroying that which she intended to perfect ? If the simple name “ Jane Wood" had been signed to this testamentary paper by Neighbours, or any other person, at her request and in her presence, can there be a shade of doubt that the signing would have been just as effective as if a mark, or a hundred marks, had been annexed ? Among the numerous cases of signature by others, I do not recollect a single case in which it was said that a mark by the testator must accompany the signature by another of the testator’s name to make it valid or effective. In the case of Burwell v. Corbin, 1 Rand. 131, the name of the testator, James B. Burwell, was signed by John B. F. Corbin, without any mark by James B. Burwell; and there was no question made of the validity of this signature, because the testator had not sanctioned it by a mark or other symbol. Perhaps the very cause which prevented his subscribing his own name, prevented his making a mark with his own hand. In the case of Dudleys v. Dudleys, 3 Leigh 436, so much relied upon by the appellants’ counsel, the name of the testator, Gwin Dudley, was written by the witness Robert Palsey; but it does not appear that the testator annexed any mark or any other sign of recognition to his name-: and so in many other cases. Indeed I do not know that any such question has been made since the statute authorizing testators to have their names signed by others in their presence and by their direction. This provision of the statute was made for the benefit of those who were incapable of writing from some physical inability, such as blindness, paralysis, loss of hands or arms, «fee., not defect of education, and who might be as incapable of making a mark, as of writing their names.
    The signing of the name, that is, the writing of it, in the presence and by the direction of the testator, seems to be all that the statute requires, and to effect its just and wise object, is all that it should have required. There is no virtue in a mark, so far as it is annexed to the name, in preventing those frauds which it was an object of the statute to prevent.
    If this view of the statute be sound, and I think it cannot be successfully controverted, there is no doubt from the proofs in the cause, that there was a complete and valid signing of this testamentary paper at the time all the witnesses subscribed their names, so as to make it a perfect and well executed will; and that if she after-wards annexed a mark with her own hand to her name, it did not invalidate or impair the instrument as a perfect and well executed will.
    But suppose in this view I may possibly be mistaken, and a mark was necessary, to give effect to the signature of the testator’s name by Neighbours, and the mark to the name in this paper, was made a moment of time after the signature, will it affect the validity of this paper, as a valid will, and defeat its probat ? I argue that it will not.
    1. The writing of the will, the signing of the testator’s name, the attestation of the witnesses, and the making her mark by the testatrix, were all simultaneous acts, done at the same time, by the same hand, and in the presence of the same witnesses, without having separated for a moment of time from the testatrix each other, or a moment’s suspension of time. The witness who wrote her name, and the witnesses who attested the will, all stood by, saw the testatrix snatch the pen from Driskill, just as he made his mark ; and lest the will might possibly be regarded as imperfectly executed, made her own mark, calling the attention of the witnesses to the fact, by the remark to Neighbours, “ as you have written my name, I will make my mark.”
    
    The witnesses all seeing this and looking on when it was done, knowing the character of the instrument to which they had subscribed their names as witnesses, and the purpose for which it was done, would be regarded as having recognized their names, already subscribed and before their eyes, as an attestation to this additional act of making a mark.
    2. She recognized this signature, mark and all, when she said to the witnesses, Cralle and Driskill, “ that that was her will.” Driskill says when she made this remark, Cralle was with them in the room, but Neighbours was not. Neighbours knew what the instrument was, for he wrote it.
    I think these acts and circumstances, even if there was any thing imposing or difficult in the argument, growing out of the time this mark is supposed to have been made, are sufficient to prove that these witnesses recognized their signatures after this mark was made. See Pollock v. Glassell, 2 Gratt. 439.
    I do not think that this view, in the slightest degree, conflicts with the remarks of Judge Cabell and Judge Brooke, in the case of Dudleys v. Dudleys. They spoke in reference to a state of facts which did not exist in the case before the Court. They spoke of a case in which the attestation was made before the name of the vendor or testator had been signed by himself or by his direction. They spoke of a naked case without reference to any fact of after recognition of the attestation. In that very case the duty of inferring facts in support of the testamentary paper before them, was much more freely exercised than will be necessary in this case. I do not doubt that the Court would reject any paper, whether deed or will, if it stood upon the simple question of attestation before signature, without any farther proof; and there are several cases in the English books, to sustain this position; but in those cases there were no circumstances from which signature before attestation, could be reasonably inferred, ox-proof of a subsequent recognition of the act of attestation. In this case there was a legal and valid signing of the name before attestation, and whether the mark was made before or after attestation, depends upon the memory of a witness who testifies at the distance of eighteen years from the time of the act, and that in opposition to the fair inference to be drawn from all the circumstances of the case, and the presumption arising from the acts of the two dead witnesses, both more intelligent than him, and upon the recollection of a mere second of time. The Court, it seems to me, particularly after such a lapse of time, could not seize hold of such a slight circumstance to defeat the last solemn act of a woman who had sufficient capacity to do it, and about which there is not a vestige of fraud. To do so, would be to impair the exercise of a privilege secured by our laws and favoured by the Courts.
    In the case of Smith v. Jones, 6 Rand. 33, this Court maintained that a Court of probat occupies the place of a jury, as to questions of fact, and its province is like that of a jury, to draw all just inferences from the evidence. This doctrine was repeated in the case of Boyd v. Vass’s ex’or, 3 Leigh 32—recognized by Judges Carr, Cabell, Brooke and Tucker, in Dudleys v. 
      Dudleys, before referred to; and Smith v. Jones, 6 Rand. 33.
    In exercising this function in the present case, I do not think the Court will find it difficult to infer, if it shall be necessary to sustain the will, that the witness Driskill was mistaken as to the time the testatrix made her mark to the testamentary paper. It seems to me that an inspection of the will, all being prepared by the same hand, written with the same pen and the same ink, and completed and endorsed in the presence of the testatrix and the subscribing witnesses at the same time, without a moment’s separation or suspension, are amply sufficient proof of such a mistake. But if not, the whole transaction was a continuous and uninterrupted one, and occupied so short a space of time, that there cannot be any thing in this point.
    There is another point in this case, to which I will briefly advert. I maintain that the acknowledgment of this testamentary paper, by the testatrix, as her will, was equivalent to proof of the signature.
    In England it was formerly held that this acknowledgment must be of the signature, to dispense with the proof that the signature was made in the presence and by the direction of the testator; but this distinction between an acknowledgment of the signature, and a general acknowledgment of the testamentary act, has been overruled there, and the general acknowledgment held sufficient proof of the signature.
    The same distinction was taken in Burwell v. Corbin, 1 Rand. 136, by Judges Coalter and Brooke, and dissented from by Judges Cabell and Roane. This distinction has since been overruled in this Court, and the general acknowledgment held sufficient. See Dudleys v. Dudleys, 3 Leigh 436; Boyd v. Vass’s ex'or, 3 Leigh 32 ; 1 Lomax’s Digest 34.
    
      
      Patton.
    
    It is insisted by the counsel for the appellants, that the will of Mrs. Wood was not executed in the manner required by the statute. The subscribing witness proves that Mrs. Wood’s name and seal were upon the paper when she, holding it in her hand, asked the witnesses to attest it. But it is objected, that there is no proof that her name was signed by her request. It is true that this is not proved by a living witness. The only witness who could have proved this fact was Neighbours, who wrote the name, and he was dead at the time of the trial. But he attested the will, and his attestation stands as proof that the act of signing the name of the testatrix was done at her request.
    The counsel on the other side admits it is established law, that if a testator acknowledges a signature to be his it is sufficient; or that if he acknowledges a paper which has been properly executed, to be his will, it is sufficient. But he says that no case has gone so far as to decide that a paper which has been signed by a third person for the testator, and the testator only says “ it is my will,” is sufficiently proved.
    I shall not follow the counsel in his review of the cases in England and in this Court. They have been reviewed by Judge Lomax in his digest, to which I will refer the Court. 3 Lomax Dig. p. 29 to 35. The counsel took a distinction between the cases in which the will was signed by the testator and those in which it was signed by a third person. On this point Judge Lomax is express against him. The Court or jury may infer from the acknowledgment of the will by the testator, that it was signed at his request.
    The counsel has referred us to the decisions in the English ecclesiastical courts. The most of these decisions are made without consideration, upon motions to the Court. They are not regarded by the Judge who made them; and they are cited for the purpose of inducing this Court to retrace its steps. The counsel ought to remember what is emphatically true at this day, nulla vestigia retrorsum. The counsel says he only asks that the Court will go no further than it has already gone. But if these decisions are to guide us we must go back. Clarke v. Dunnavant, 10 Leigh 13, goes much further than they go. They are founded on the statute of Victoria, which the Judge who decided them, holds was intended to repeal the decisions on the statute of Charles 2d. In conclusion, I submit that where upon the face of the will every thing seems to be regular, it will be presumed that every thing was regularly done. Gaze v. Gaze, 7 Eng. Ecc. R. 462; Blake v. Knight, Id. 509; Jarmin on Wills 72, in note ; 3 Starkie Evi. 1685, who cites Peale v. Ouogley, Comy. R. 197.
    
      
       He bad been counsel in the Court below.
    
   Baldwin, J.

delivered the opinion of the Court.

The evidence in the cause is satisfactory to prove that the paper writing propounded as the last will and testament of Jane Wood deceased, was acknowledged by her as her act in the presence of the attesting witnesses, who subscribed the same as such in her presence, and moreover at her request; that the testatrix was at the time of sound disposing mind and memory, understood the nature and contents of the instrument, designed the testamentary disposition of her property thereby made, and was in no wise the subject of any fraud or undue influence. The case, therefore, turns upon the question whether the formal execution and attestation of the instrument was in the mode prescribed by law.

Our statute law requires a will, whether of realty or personalty, to be in writing, and signed by the testator, or by some other person in his presence and by his direction, and moreover, if not wholly written by himself, to be attested by two or more credible witnesses subscribing their names in his presence.

The paper in question appears upon its face to be signed with the name and mark of the testatrix, and subscribed with the names of two of the attesting witnesses, and with the name and mark of the third. The names of the two former witnesses, to wit, Neighbours and Cralle, who were dead at the time of the probat in the County court, are proved to be in'their hand writing, and the name of the third, to wit, Driskill, who has been examined in the cause, is proved to be in the handwriting of Neighbours, and the body of the will, together with the signature of the testatrix’s name, is also proved to be in the handwriting of Neighbours. The surviving witness, Driskill, proves the acknowledgment of the testatrix in the presence of himself and the other two witnesses; that his own name was written by Neighbours, at his own request, and the mark thereto made by himself; and that Neighbours and Cralle wrote their own names. Driskill also proves that the testatrix put her mark to the subscription of her name : but he states that when he made his mark, which was after the other witnesses had written then names, the testatrix had not put her mark to the subscription of her name, but made it subsequently; and the enquiry is, whether the fact be according to the recollection of the witness, and if so whether, under the circumstances, it be material.

The surviving witness Driskill proves that the testatrix actually executed the instrument in the presence of himself and the other two witnesses by her affixing her mark to the subscription of her name, and this is a sufficient signing within the meaning of the statute; so that the only thing which can be material in this part of the enquiry is, whether she made her mark before or after the subscription of the witnesses. The proof that the signatures of the two deceased witnesses is in their handwriting is secondary evidence derived from them, that prima facie all the essential requisites of the statute were observed. It is moreover a fair presumption that the witness Neighbours, who wrote the will, and concurred in its attestation, gave his attention as the confidential friend of the testatrix, to its due execution in the proper order of time. The surviving witness, Driskill, is an illiterate person, who gives his recollection after the lapse of more than sixteen years, as to the order of time of one of several incidents occurring within the brief period of a few minutes ; and he appears to be mistaken as to the season of the year in which the whole transaction occurred. If the moment of time at which the testatrix made her mark be material, the Courts below who had that witness before them, enjoyed a better opportunity than this forum of forming a correct judgment in regard to the credit and weight due to his testimony; and all circumstances considered, we cannot undertake to say that they did not estimate it correctly; and upon the whole the fair inference is that the testatrix made her mark before the subscription of the witnesses. If this were otherwise, can it be considered material ?

It is not necessary that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature, or even that the instrument is his will. It is enough that he should acknowledge in their presence that the act was his, with a knowledge of the contents of the instrument, and the design that it should be the testamentary disposition of his property. If the paper has been subscribed by himself, such an acknowledgment is a recognition and ratification of his signature. If his name has been subscribed to it by another, such acknowledgment is a recognition and ratification of the signature as having been made for him, in his presence and by his direction. In this case, if the testatrix made her mark after the attestation of the witnesses, it seems to have been an afterthought, and not in pursuance of any design conceived prior to the attestation. The witness Driskill proves that upon making his mark to the subscription of his name, he handed the . pen to the testatrix, who remarked to the witness Neighbours, "as you have written my name, I will make my mark.” The fair presumption, therefore, from the evidence is, that the name of the testatrix had been written by Neighbours in her presence and at her request, without any design on her part to affix her mark to it, until the idea occurred after the attestation of the witnesses, and in that aspect it was a work of supererogation.

And, moreover, the fact whether in the order of time the testatrix made her mark before or after the subscription of the witnesses, is, under the circumstances, in no wise material, insomuch as the whole transaction must be regarded as one continuous uninterrupted act, conducted and completed within a few minutes, while all concerned in it continued present, and during the unbroken supervising attesting attention of the subscribing witnesses.

Brooke, J. concurred in affirming the judgment.

Judgment affirmed.  