
    NOTES v. DOYLE. STEARNS v. DOYLE.
    Wills; Witnesses; Revocation.
    1. The subscribing witnesses to a will need not know the contents of the document; they may attest it without the presence of each other; they, or any of them, need not see the testator sign the will, provided he acknowledge his signature to each of the witnesses; and they need not even know that the document they have witnessed is a will.
    
      2. The re-execution of a will requires the performance of the same formalities as were necessary in its original execution; and a will revoking a former will, or a codicil changing the terms of the will to which it is attached or refers, that is not attested by the requisite number of witnesses, is void.
    3. Codicils which are illegally executed because of lack of the requisite-number of attesting witnesses cannot be relied upon as a republication to make either of them a part of the will. (Following St. John’s Parish v. Bostwich, 8 App. D. C. 452.)
    4. A will attested by two witnesses, — during a time when the statute required three, — and two codicils making specific reference to the will,, and attached thereto, and attested by one and two witnesses respectively, are not, when taken together, and although a witness to both codicils was present at the execution of the will, which, however, he-did not sign as a witness, sufficient to constitute a will attested by three witnesses, and does not constitute a revocation of a former wilL
    Nos. 1943 and 1944.
    Submitted December 7, 1908.
    Decided January 5, 1909.
    Hearing on appeals by tbe defendants in two actions of ejectment wliich were consolidated, from a judgment for the-plaintiff upon an agreed statement of facts, a trial by jury having been waived.
    
      Affirmed.
    
    The Court in the opinion stated the facts as follows:
    On the 12th of October, 1905, Harold E. Doyle, appellee,, brought two actions of ejectment in the supreme court of the District of Columbia against David Notes, Rufus O. Brooks,, and Thomas L. Jones in the one case, and, in the other, against Julia A. Stearns. The defendants were terre-tenants of certain real estate described in the declaration, and situated in the District of Columbia. One Regis Canevin, Bishop of the Diocese of Pittsburg of the Roman Catholic Church, under whom said tenants held, intervened in said causes, and was, by order of the court, made a party defendant therein. The defendants pleaded the general issue, to which there was a replication, and the cases were consolidated and heard by the court,, without a jury, on an agreed statement of facts.
    
      It appears that James L. Toner, the common source of title,, was a resident of the State of Pennsylvania, and died there in-January, 1899. On the 5th of August, 1896, he executed a last will and testament, which was attested by three witnesses, by the terms of which, after a life estate was devised to his wife, he gave the property in question to his executors, with power of sale, in trust for the benefit of certain educational and charitable institutions. The plaintiff here claims under this instrument. In October, 1897, Toner made and executed another last will and testament, revoking the former instrument, by the terms of which he devised all of his property to his wife for her life,, with the further provision that his estate was to be controlled and managed by his executors, named in the will, and the net proceeds to be paid to his wife annually. After a number of bequests to individuals and institutions specified in the will, he devised the residue of his property to the Benedictine Society of the Catholic Church of America. This will was attested by two witnesses only. In July, 1898, Toner executed a codicil increaing one of the legacies contained in the will of October, 1897, reducing another, and substituting the Boman Catholic Diocese of Pittsburg for the Benedictine Society of the Catholic Church as his residuary legatee and devisee should the society decline the bequest, together with some other immaterial changes. The codicil was attested by a single witness, James S.. Moorehead. In August, 1898,. Toner executed a fourth instrument in the form of a second codicil to the will of October, 1897,. increasing the amount of a former legacy, adding a new legatee, and revoking a bequest contained in the October will. This instrument was attested by two witnesses, one of whom was Moorehead. It appears that each of the codicils referred to the will of October, 1897, and provided that the will should “in all other respects remain as now written.” It also appears that the will of October, 1897, and the codicils thereto attached were-written by James S. Moorehead, who was present at the execution and attestation of the will by the testator and the two subscribing witnesses, but who did not himself attest its. execution.
    
      The question here to be determined is whether the will of October, 1897, and the codicils thereto attached, no one of which was attested by three witnesses, are legally sufficient to revoke the will of August 5, 1896, under which the plaintiff claims? On trial in the court below, the second will and codicils were held ineffectual for the purpose of revoking the former will, and judgment was given for the plaintiff, from which judgment the defendants prosecute this appeal.
    
      Mr. B. F. Leighton for the appellants.
    
      Mr. J. J. Darlington for the appellee.
   Mr. Justice Van Orsdel

delivered the opinion of the Court:

At the time of the execution of the various instruments in question, the statute of Maryland relating to the execution of devises of real estate was in force in this District, and provided: “All devises and bequests of any lands or tenements devisable hy law shall be in writing and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of said devisor by three or four credible witnesses, or •else they shall be utterly void and of no effect.” Thompson’s Digest, sec. 4, 345. This provision of the Maryland statute is •substantially the same as sec. 5 of chap. 3, 29 Charles II., known as the statute of frauds.

The sole question here presented is whether or not a will attested by two witnesses, followed by two codicils making specific reference to the will and attached thereto, attested by a third and a fourth witness, are, when taken together, sufficient to constitute a will attested by three witnesses, and can be construed as a revocation of a former will containing different devises of the same property. It is well settled, both by the English and American decisions, that the subscribing witnesses to a will need mot know the contents of the document; they may attest it without the presence of each other; they, or any of them, need not see the testator sign the will, provided he acknowledge the signature to each of the witnesses; and they need not even know that the document they 'have witnessed is a will. This rule as to what may constitute a valid attestation is substantially as laid down by Lord Mansfield in Windham v. Chetwynd, 1 Burr. 421, and it has been followed and approved by the modern decisions.

The ancient English case of Lee v. Libb, 1 Shower, 69, is decisive of the exact point here under consideration. In that case the will was executed in 1678, two years after the passage of the statute of frauds. The will was attested by two witnesses, who subscribed their names in the presence of the testator. One year later the testator made a codicil changing in some minor respects the devises made in the will, and expressly confirming the will. The codicil was attested by two witnesses, one of these being a witness to the will.

The question presented was Avhether the third witness to the codicil could be regarded as a witness to the will. The court held that there were two distinct writings, and there were not three witnesses to either. This case has been approved and followed since, both in England and the United States. It is directly in point. Here, there are three distinct instruments, no one of which is attested by three witnesses.

Another case in almost all particulars the same as the one at bar is Dunlap v. Dunlap, 4 Desauss. Eq. 305. There the will was attested by two witnesses. The draftsman was present, but did not sign as a witness. A codicil was executed in the presence of the same draftsman and two attesting witnesses, one of whom had not attested the will. The codicil, as in the present case, referred to the execution of the will. The draftsman testified that he wrote both the will and the codicil at the request of the testator; that he saw both signed by the testator; that he saw the witnesses attest both instruments in the presence of the testator and in the presence of each other; and that he attached the codicil to the will in the presence of the testator. Upon this state of facts, the court, referring to the draftsman, said: “Mr. Taylor was present and saw the execution of the will, and might have become a subscribing and attesting witness under tbe statute ; but tbat, in point of fact, he did not become so; be did not subscribe tbe will at all. Now tbe statute is so clear and peremptory on tbis point tbat it is impossible to get over it. Nay, if Mr. Taylor bad, after the execution of tbe will in bis presence, actually subscribed tbe will as a witness, but in another room, and out of tbe presence of the testator, tbis subscription would not be sufficient. Tbe will, so imperfectly executed, cannot pass real estate. Such is tbe law, and I must be governed by it.”

In tbis jurisdiction, in tbe case of Re Porter, 9 Mackey, 503, tbe court, considering a codicil signed by two witnesses wbo saw tbe testator sign it, and by a servant wbo did not see it signed or know what tbe document was, but signed it by command of tbe testator, said: “We accept as authoritative tbe line of cases which we have cited. They show tbat, within tbe meaning of tbe statute of 29 Charles II., attestation is properly made, either when tbe witness has seen tbe testator sign tbe instrument, or has beard him after it has been signed, acknowledge that the act was bis. They show also tbat tbis acknowledgment may be conveyed either by words or by acts which indicate to tbe witness tbat be is called upon to act in tbe capacity of witness and to fittest something which is treated by the testator as bis act. They show, too, tbat it is not necessary to tbe effectiveness of tbis acknowledgment, or of tbe attestation, tbat tbe witness should know tbe nature of the instrument produced and submitted for bis attestation.”

Counsel for defendants in bis brief has displayed a patient and able research, and cited many cases showing tbe great length to which courts will go in upholding tbe execution of a will in order to carry into effect tbe evident intention of tbe testator, but be has produced no approved case where tbe statutory number of witnesses has been supplied, either by considering a person present at tbe signing, but not formally attesting, a witness, or by considering each of tbe several witnesses to a will and its codicil or codicils as witnesses to tbe entire instrument. It is well settled, both in England and tbe United States, tbat a re-execution of a will requires the performance of the same formalities as are necessary in its original execution; and a will revoking a former will, or a codicil changing the terms of the will to which it is attached or refers, that is not attested by the requisite number of witnesses, is void. 1 Underhill, Wills, sec. 211.

In the present , case it is sought to furnish the requisite number of witnesses to the will by parol evidence of the presence of Moorehead when the will was originally executed, or by having his attestation of the codicils relate back to the attestation of the will. It is unnecessary for us to consider this contention, since the codicils, being illegally executed for lack of the requisite number of attesting witnesses, cannot be relied upon as a republication to make either of them a part of the will. St. John’s Parish v. Bostwick, 8 App. D. C. 452. The will and the two codicils, each being defectively executed, it is not clear to us how they can be so put together as to be construed into a legal instrument for the conveyance of real estate. To accomplish this, it would not only be necessary to make the attestation of Moorehead to the codicils relate back to the attestation of the will, but, in order to have the requisite number of witnesses to the codicils, it would be necessary to make the two attesting witnesses to the will relate forward to the first codicil, and one of them relate forward to the second codicil, though neither of them, presumably, ever saw the codicils, or even knew of their execution by the testator. The mere statement of the proposition is sufficient answer to defendants’ contention.

We have been cited-to no ease where a court has assumed to supply an attesting witness by parol evidence. Such a ruling would open wide the door to all sorts of abuses. It would be an invitation to persons having an imaginary interest in the estate of the testator to cure a defective will by fraud and perjury. A valid attestation can only exist when the signatures of the number of witnesses required by statute appear attached to the instrument in such a manner as to indicate that they were placed there with the knowledge ánd consent of the testator, cither at his request or by his command. The only case called to our attention where a different holding seems to have been made appears in Bacon’s Abridgment, Vol. 1, marginal page 309, referring to Lea v. Libb, 3 Mod. 262, where it is stated that it was “adjudged, though it was objected, the will and codicil make but one will, and the circumstance of three witnesses wanting to complete the will was perfected by the codicil.” This case is purported to have been decided in 1688, twelve years after the enactment of the statute of frauds. If the reference is authentic, the reasons for the judgment have not been followed by the subsequent English decisions, and it must be presumed that they were overruled and discredited.

The will in question not having been legally executed, it cannot either operate as a conveyance of the real estate here in controversy, or a revocation of the former will. The judgment is affirmed, with costs, and it is so ordered. Affirmed.  