or personal, nor to change 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 two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved. The rule of law which is applicable as to wills executed abroad by persons domiciled in this state, is the common law rule, by which it is not essential to the validity of a will that it should be attested by witnesses37. It is well settled at common law that every man has a right to dispose of his property by will and the statute merely confirms this right38. If a will of personal property is regularly made in accordance with the forms and solemnities required by the law of the domicile of the testator, it is sufficient to pass such property in every other country in which the same is situate39. The rule in regard to real property is that the mode of execution and the validity of a will must be governed exclusively by the lex rei sita, the law where the land is situated40. It is said that as to the construction or meaning of the words employed in the will, they are usually governed by the law of the domicile of the testator, even though they relate to real estate in some other state or country11.

37. Rue High, 2 Doug. 515. 38. Rue High, 2 Doug. 515. 39. Rue High, 2 Doug. 515.

40. Ford v. Ford, 80 Mich. 42, 44 N. W. 1057.

41. Ford v. Ford, 80 Mich. 42, 44 N. W. 1057.

§56. Mode and Requisites in Execution.

The proposition is self-evident that a document not executed in compliance with the statute, although purporting to make distributions of a person's estate after her death, is not a will42. It was previous to the passage of the "act concerning churches and religious societies," etc., providing for proof in open court by three witnesses of wills containing bequests relating to churches and religious societies, that a will of this kind was executed with only two attesting witnesses. Although it was not re-executed after the passage of this act, and took effect after such passage by death of the testator, the will was nevertheless valid as well as the bequests13.

§57. The Signing by the Testator.

The statute provides that the will must be "signed by the testator, or by some person in his presence and by his express direction." This clause was taken from 29 Car. II. § 5. The manner of requesting the witnesses to attest and subscribe is not essential, for the testator need not in terms request the witnesses to attest the will. It is immaterial how the request is conveyed to the witnesses, if it appears that such request was the free and intelligent act of the testator43a

$58. Modes of Signing.

Under the statute there are two ways in which a testator may sign a will.

(1) By affixing his own signature.

42. Clay v. Dayton, 134 Mich. 317, 96 N. W. 458.

43. American Baptist Mission

ary Union v. Peck, 10 Mich. 341. 43a. Kempsey v. Maginnis, 2 Mich. N. P. 49.

(2) By having some other person whom the testator authorizes to affix his signature in the manner required by statute.

§59. Signature by Name.

The form of signature is not material whether the name is written in full, or abbreviated or whether written with pencil, ink or stamp.

§60. Signature by Mark.

A valid signature may be made by mark, i. e., a cross over which is written the words "his or her mark." This mode would be sufficient in law. The cause for signing by mark is usually illiteracy or ill health.

§61. Time of Affixing Signature.

It is evident that the signature or acknowledgment by the testator must precede, in point of time, subscription by the witnesses44.

§62. Signing by Some Other Person for Testator.

The statute provides that, if the will is not signed by the testator personally, then it must be signed by some person in his presence, and by his express direction. It is apparent that if a man, owing to being deprived of hands, or being paralyzed, or being blind, or in any other way being unable to write or make a cross, he is not for any of these reasons deprived from making a will, provided he is otherwise competent. The provisions of the statute ex

44. Schermerhorn v. Merritt, 123 Mich. 310, 82 N. W. 513. Rehearing denied. It is good prac

tice to have the testator sign the margin of each page of the will, for the purpose of identification and the prevention of fraud.

pressly disclose that he can direct some person to sign for him. To make this signature valid, it is essential that the testator expressly request the person to affix his signature in his presence. Thus, there are two requisites necessary to affix the signature of another:

(1) The person directed to sign the name of the testator must sign the name in his presence.

(2) The person must be expressly requested to do so by the testator.

§63. What Persons May Sign for Testator.

The statute being free of restrictions, it follows that any person may sign the will for testator, provided he has been properly authorized by the testator to do so. Thus where the signature of the testator was written by a subscribing witness at the request of the testator, the signature was valid45.

§64. Presence of Testator.

The word "presence" in this connection may be interpreted the same as it is when applied to subscribing witnesses. It is clearly inferential that where a person has affixed the signature of the testator at his request, but not in his presence, the signing is invalid under the statute. In the application of the principle relating to subscribing witnesses in this connection, it may be said, that interpreting the phrase "in the presence of" due regard must be had to the circumstances of each particular case. If he signs within testator's hearing, knowledge and understanding, and so near as not to be substantially away from him, he is considered to be in his presence46.

45. In re Langan, 74 Cal. 353.

46.

Cook V. Winchester, 81

Mich. 581, 46 N. W. 106.

§65. Sufficient Direction.

Where a draftsman said to the testator after he had completed his will, "You can make your cross and I can sign it for you, if you so direct," to which the testator replied, "Very well, do so," this direction was deemed sufficient under the statute47.

866. Form of Signing.

Where a testator has been disabled by paralysis from signing his will, and he directed his solicitor to sign for him, who wrote the following: "This will was sealed and approved by Captain Frederick Blair, by C. C., in the presence of J. M. and J. H. and C. C.," the signing as sufficient and valid48. "A. B. by C. D. in his presence and at his request" affixed to a will is a valid signature19, so is a signature made by the witness writing his own name and then adding that it is done for the testator at his request. "Signed on behalf of testator, in his presence and by his direction by me, J. C.," constitutes a valid signature1.

$67. Manner of Signing.

Where a testator towards the end of his life had his usual signature engraved, so that it might be stamepd on letters and other documents requiring his signature, he had so stamped by another person, in his presence, and at his direction two codicils which he had made to his

47. Mullin's Estate, 110 Cal.

252.

48. In Re Goods of Blair, 6 Notes of Cases in Eccl. Courts 528.

49. Abraham v. Wilkins, 17 Ark. 292.

50. Vernon v. Kirk, 30 Pa. St. 218.

51. In re Clark, 2 Curt. 329.