Appeal from prerogative court.

Application of Harriet N. Dobbs for probate of a will. From an order allowing the same, Fannie E. Lacey and others appeal, and from an order of the prerogative court (47 Atl. 481) affirming such judgment, they again appeal. Reversed.

Addison Ely and Wm. H. Ely, for appellants. Alexander Grant and Harry F. Barrell, for respondent.

COLLINS, J. The orphans' court of Essex county admitted to probate as the last will and testament of Mary Ann Caldwell, deceased, a paper writing, her signature to which was proved to have been made after the subscription of the putative testamentary witnesses, although on the same occasion, and while they were still present. Upon affirmance in the prerogative court by the decree that is the subject of the present appeal, the learned chancellor, sitting as ordinary, was largely influenced, if not controlled, by a deliverance in that court in 1858 in the case of Mundy v. Mundy, 15 N. J. Eq. 290, to the effect that the order of signing was not material to the validity of a will. The question has been directly involved in no other reported case in this state. The first section of the supplement approved March 12, 1851, to "An act concerning wills" (3 Gen. St. p. 3760), upon which all valid wills must rest, reads as follows: "All wills and testaments of persons dying after this act shall take effect, or who may have died since the fourth day of July in the year of our Lord eighteen hundred and fifty, shall be in writing, and shall be signed by the testator, which signature shall be made by the testator or the making thereof acknowledged by him, and such writing declared to be his last will, in presence of two witnesses present at the same time, who shall subscribe their names thereto as witnesses, in the presence of the testator; and all wills and testaments of persons dying since the day above mentioned, made in manner prescribed, by any person competent by law to make such will, shall be sufficient to devise, pass and bequeath all estates and property, real or personal, and all rights of any kind, and to appoint a guardian or guardians to any child of the testator during infancy." The grammatical sense of this enactment is that the entire testamentary act is to be attested by two witnesses by the subscription of their names. They are to subscribe "as witnesses"; i. e. as those who know (Saxon, "witan") what was said and done. They cannot know before the fact. But the apparent meaning of words must yield to authoritative judicial construction; and a judgment of the prerogative court, of long standing, although not binding in this court, should not lightly be overruled. Hence some elaboration seems proper in vindicat

ing a determination contrary to the deliverance mentioned, the more so because of confusing adjudications elsewhere.

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It will be found upon examination of the case cited that such deliverance was an illconsidered makeweight for a decision previously placed on a sound basis, with which it was really inconsistent. The decree was mainly and rightly rested on the evidential force of the attestation signed by the testamentary witnesses. It was said: "The attestation clause, with the signatures of the witnesses, is prima facie evidence of the facts stated in it. It may be overcome by the witnesses themselves, or by other witnesses, or by facts and circumstances irreconcilable with its verity. If there is no attestation clause, the case is different. the one case, there must be affirmative proof of publication, and of the other requisites; in the other, there must be affirmative proof of the want of those requirements." Allaire v. Allaire, 37 N. J. Law, 312, the present chief justice, speaking for the supreme court, said that the true principle had been so declared with exactness; and in Allaire's Heirs v. Allaire, 39 N. J. Law, 113, this court held that the legal rule was thus properly settled. But, not content with this firm ground of decision, the learned ordinary, evidently without scrutiny of the statute and without that careful consideration almost always displayed in his judicial utterances, went on thus to support it: "Mrs. Manning at one time says that she thinks her husband [one of the testamentary witnesses] signed before the testator. If the fact was clearly proved, it would not affect the validity of the will. The particular order of the several requisites to the valid execution of a testament is not at all material. Vaughan v. Burford, 3 Bradf. Sur. 78." This is most unsatisfactory. The order of the requisites to the execution of a will is not material. The testator may declare the "writing" to be his will before or after or contemporaneously with the making or acknowledging of the signature, but attestation is a different matter. Of course, the word "execution" was used-though inaptly to include the subscription of the witnesses, and the New York surrogate's decision, on which too hasty reliance was placed, was to the effect stated, upon a New York statute like our own. That decision has since been repudiated by the court of appeals, and it is strange that so acute a reasoner as the writer of the opinion in Mundy v. Mundy should not have seen the inconsistency of antecedent subscription of witnesses with his declared rule that "the attestation clause, with the signature of witnesses, is prima facie evidence of the facts stated in it." One of those facts must be the making or acknowledging of the testator's signature. The attestation clause, he had said, can only be overcome by proof irreconcilable with its verity. When signed,

therefore, in order to have such a probative force, it must be true. The rule necessarily interprets the statute. The rationale of the rule was very clearly stated by Van Fleet, vice ordinary, in Farley v. Farley, 50 N. J. Eq. 434, 439, 26 Atl. 178. He said that an attestation clause is "for the very purpose of preserving in permanent form a record of the facts attending the execution of the will, so that, in case of the failure of memory, or other casualty, they may still be proved. It is for this reason that the courts have uniformly held that, on proof of the authenticity of the signatures of the subscribing witnesses, the facts stated in the attestation clause must be considered and accepted as true until it is shown by affirmative proof that they are not." The late chancellor, sitting as ordinary, in Darnell v. Buzby, 50 N. J. Eq. 725, 727, 26 Atl. 676, tersely said: "The attestation clause recites particulars which assert complete obedience to all the requirements of the statute, and, the signature of the witnesses being admitted, that clause makes prima facie proof of all the facts stated in it." If it be urged -as, indeed, it has been in some of the cases that the legal presumption raised by the attestation clause is an arbitrary one, because the witness first subscribing cannot, in the nature of things, attest that the other subscribes in the testator's presence, the answer is that in this regard all that is required by the statute is that each witness shall so subscribe. The attestation is not joint, but several, and the witness subscribing does not attest the signature, but only the presence of his colleague. the argument that, as like effect is given to an attestation clause by those courts that hold the order of signing to be immaterial, it is at least disputable that such rule of evidence is inconsistent with that laxity, it is sufficient to reply that in any case all that need be attested is that for which the particular statute involved requires the presence of witnesses, and that no court has yet held that attestation can precede the testator's signature where the statute construed requires in terms, as does ours, the making or acknowledging of such signature to be in the presence of the testamentary wit

nesses.

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Before proceeding to consider direct adjudications on the question sub judice, it will be necessary to present the state of the law on the subject of wills at the time of the enactment of our present statute. Testaments of personalty were in England, until the reign of Victoria, left to the ecclesiastical courts, unaffected by legislation. Devises of lands were sub temp. Hen. VIII. required, by act of parliament, to be in writing; but no formalities or attestation were prescribed. The statute of frauds of 29 Car. II. c. 3, § 5, provided that such devises "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 the said devisor, by three or four credible witnesses, or else they shall be utterly void and of no effect." This statute inherently prevailed, or was, in substance, enacted, in the American colonies and the states of the Union, many of whom extended its provisions to testaments of personalty. In New Jersey a change, in phraseology at least, was made. In 1713-1714 it was enacted that "all wills and testaments which hereafter shall be made in writing, signed and published by the testator in presence of three subscribing witnesses and regularly proved," etc., "shall be deemed sufficient to devise lands." Allinson's Laws, p. 27. This statute survived the Revolution. In Compton v. Mitton, 12 N. J. Law, 70, decided in 1827, Chief Justice Ewing called attention to the difference between it and the English statute of frauds. He said: "Under both, wills are to be in writing, to be signed, and have at least three witnesses. Our act requires the will to be published, which is not expressly directed by the other. By the English statute the will is to be signed. By our act the will is to be signed and published in the presence of witnesses. By the former the witnesses are to attest and subscribe in the presence of the devisor; by the latter they are not in terms required so to do, although it is our usual and commendable custom." Like other provisions of the statute of frauds, its fifth section was very loosely construed, and to remove the consequent uncertainty, as well as to bring testaments of personalty into uniformity with devises of land, "An act for the amendment of the laws with respect to wills" was passed by parliament, taking effect on July 3, 1837, 1 Vict. c. 26. By section 9 it was enacted that "no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; that is to say, it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary." This statute soon came before the ecclesiastical courts, and in 1842 was carefully considered by Sir Herbert Jenner Fust in the prerogative court of Canterbury. Moore v. King, 3 Curt. Ecc. 243. The great importance of the case as a leading one was perceived and expressed; the previous interpretations, though of the same tenor, having been ex parte. In re Goods of Olding, 2 Curt. Ecc. 865; In re Goods of Byrd, 3 Curt. Ecc. 117. These were the facts: The testator signed the draft of his will in the presence of his sister, who subscribed her name as a witness. On the next day he acknowledged

his signature in her presence and in the presence of another person, to whom the sister pointed out her signature, and who then subscribed as a witness. The will was held invalid for lack of conformity to the statute. It was observed that the new legislation was amendatory, and in fact had grown out of the loose construction that had been given to the statute of frauds, and the judge said: "I clearly find that the object of this act is to remove every possible doubt, thereby taking away all latitude and discretion in its interpretation." He declared his opinion that "the act is not complied with unless both witnesses shall attest and subscribe after the testator's signature shall have been made or acknowledged to them, when both are actually present at the same time." He pointed out that the alternative of acknowledgment of the testator's signature, expressly given by the act, precludes any implication that the witnesses might acknowledge their signatures previously made. The same learned judge reaffirmed his opinion the next year in Cooper v. Bockett, 3 Curt. Ecc. 648, in a case where the testator signed on the same occasion as the witnesses, but after they had signed. No English court has ever held that the statute of frauds permitted subscription of testamentary witnesses in advance of the testator's signature. When parliament passed the amendatory act, such an anomaly had never, in any adjudged case, been presented or suggested. But in this country, before the New Jersey legislature acted finally in the premises, the subject had been judicially considered. In Kentucky the statute of 1797 required that wills should be "signed by the testator or testatrix or by some other person in his or her presence and by his or her direction; and moreover, if not wholly written by himself or herself be attested by two or more competent witnesses subscribing their names in his or her presence." 1 Litt. Ky. Laws, p. 611. A will was drawn for a testator, and, while still unsigned by him, was subscribed in his presence by two persons as if witnesses. Some hours later he signed it in their presence and in the presence of a third witness, who subscribed it; the first two at the same time acknowledging their subscription. In 1840 this will was established as valid by the supreme court of the state. Swift v. Wiley, 1 B. Mon. 114. A distinction was drawn be tween attestation and subscription. The judge said that subscription was required “for the sole purpose of identification." This was a misconception, for attestation of a will involves subscription, and there is a better argument in favor of the decision, which I will later suggest. Under a statute practically identical with that of Kentucky the supreme court of appeals of Virginia in 1849 held, obiter, that the order of signing as between testator and witnesses was not material. Rosser v. Franklin, 6 Grat. 1, 52 Am. Dec. 97. The signature of an illiterate testatrix had

been written for her before the witnesses subscribed, and the occasion of the dictum was her subsequently making her mark. It will be observed that neither in the English statute of frauds nor in these American derivatives is it required that the testator's signature shall be made or acknowledged in the presence of the witnesses, and that under each statute it is the will that is the written disposition of the testator's property, not its due execution, that, in terms, is to be attested. It is consistent with such legislation that the writing shall be declared to be the will of the testator, although his signature be not shown to the witnesses; and if, when probate is moved, or the will in any wise comes in controversy, the true signature of the testator appears upon the attested document, it may be fairly arguable there has been compliance with the law. In the old case of Peate v. Ougly, Comyn, 197, a jury was permitted to inquire of the due execution of a will which was so folded when the witnesses subscribed it that they could not know whether or not it was signed, and a verdict for the will was sustained. This would have been impossible under 1 Vict. c. 26, and the precise case did in fact, in 1844, arise under that statute. Hudson v. Parker, 1 Rob. Ecc. 14. The proof was that the witnesses had subscribed, in presence of an ostensible testator and each other, a paper on which the writing was concealed. The testator said it was his will, but did not show any signature. After his death his proper signature appeared at the end of the paper. Dr. Lushington, in an elaborate opinion, distinguishing the Victorian statute from the statute of frauds, held the paper invalid as a will. In this situation, and with the same purposes that moved the British parliament in 1837, the New Jersey legislature proceeded to deal with the general subject of wills. By an act approved March 7, 1850 (P. L. 280), it was provided that: “All last wills and testaments of persons dying after this act shall take effect shall be in writing, and shall be signed or acknowledged to have been signed by the testator, and declared to be his or her last will, in the presence of at least two credible witnesses present at the same time, who shall subscribe their names thereto as witnesses in the presence of the testator." A year later the statute first above quoted, and still extant, was substituted. The main purpose of the change was to more clearly express the requirement that the signature of the testator must be made or acknowledged by him in the presence of the witnesses, and to declare in terms that the provisions of the act should extend to personal as well as real estate. The substantial identity of much of the language used with that of the English statute of 1837 makes it indisputable that the one was the model for the other. Ours is the more stringent, if there be any difference in the forms of expression. I will not say that

knowledgment of signature of the testator must precede subscription by the witnesses, he justifies that interpretation of the act, although he thinks it a strict one, on the ground that it is such signature that the witnesses are to attest. He says that the English act clearly places more stress than that of South Carolina on the mere manner of executing wills, and he concludes: "When the statute expressly or by necessary inference requires such formalities, then nothing is left but to enforce it; but the court will not stress formalities which the statute does not." In Maryland, also, the court, in an earlier decision, declaring that in that state testamentary witnesses need not subscribe the will in presence of each other, had called attention to the fact of the essential differences between the statute of frauds (of which it was said the Maryland act was a copy) and the Victorian statute, as pointed out by Sir James Herbert Jenner Fust. The Illinois statute is unique. It enacts that "all wills, testaments and codicils * shall be reduced to writing and signed by the testator or testatrix or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix, by two or more credible witnesses, two of whom, declaring on oath or affirmation, before the county court of the proper county that they were present and saw the testator or testatrix sign the said will, testament or codicil in their presence, or acknowledged the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of such will, testament or codicil to admit the same to record: provided that no proof of fraud," etc. Hurd's Rev. St. 1899, c. 148, § 2. Plainly, it is the will, not the signature or its acknowledgment, that is to be attested; and the supreme court of the state, in Hobart v. Hobart, 154 Ill. 610, 39 N. E. 581, 45 Am. St. Rep. 151, has held that, where a testator does not sign in presence of the witnesses, it is not necessary for him to acknowledge in their presence a signature previously made, the words "the same," twice occurring in the statute, in the opinion of the court, referring back to "said will"; and while in Gibson v. Nelson, ubi supra, the same court, solely on the authority of O'Brien v. Galagher, Rosser v. Franklin, and Miller v. McNeill, ubi supra, did hold the order of signing immaterial, it indulged in reasoning that destroyed the force of its decision,-if the statute requires attestation of signature, ---by declaring that "undoubtedly the proper order is for the testator to sign first, for after the witnesses had signed he might never sign, or might sign on some other occasion, or out of their presence, which would not be a compliance with the statute."

I do not concede that the American cases were rightly decided. I very much doubt if

the English courts would have so construed their basic legislation. In Peate v. Ougly, ubi supra, the verdict was justified only on the assumption that the jury found that there was execution before attestation. In Windham v. Chetwynd, 1 Burrows, 414, 421, Lord Mansfield seems to imply such a necessity, while in Roberts v. Phillips, 4 El. & Bl. 450, 459, Campbell, then lord chief justice, assumes it in upholding as valid a subscription by the witnesses at a place other than the foot of a will made in 1828. He says: "The mere requisition that the will shall be subscribed by the witnesses we think is complied with by the witnesses who saw it executed by the testator immediately signing their names on any part of it, at his request, with the intention of attesting it." In this country the courts of five states have interpreted enactments copied from the statute of frauds as requiring signature by or for the testator before there can be subscription in attestation by the witnesses. In North Carolina this occurred in 1841. Ragland v. Huntingdon, 23 N. C. 561, followed in 1854 in Re Cox's Will, 46 N. C. 321; but the first adequate treatment of the subject was in 1865, by Gray, J., in the Massachusetts supreme court, in Chase v. Kittredge, 11 Allen, 49, 87 Am. Dec. 687. With a wealth of erudition and argument he demonstrated, both on authority and principle, that attestation cannot precede execution of a will. The Massachusetts statute, enacted in 1836, as quoted in the report, was as follows: "No will (excepting nuncupative wills) shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by his express direction, and attested and subscribed, in the presence of the testator, by three or more competent witnesses." Rev. St. 1836, c. 62, § 6. On the point in question the learned judge saw no difference between the statutes of Charles and Victoria, and he accepts the English decision culminating in Hindmarsh v. Carlton, ubi supra, as authoritative and coincident with the reason of the case. He assumes, indeed, as did the Kentucky court, that attestation and subscription are separate acts, but only to insist the more strongly that subscription by the witnesses, which he says is "in proof of" their attestation, must be the final act in the series essential to a valid will. No judge differing in opinion has attempted to answer the argument of Judge Gray, though several have ignored the decision as authoritative except where, as in the case decided, a necessary witness had subscribed the will in the absence of the testator. In a very recent decision the supreme court of Massachusetts has adopted Judge Gray's opinion in a case directly in point, and, as compactly stated in the headnote, has held that "witnesses to a will must sign after the testator has signed."