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then in the contemplation of law they did see and hear, for if the statutory formalities are substantially complied with, the validity of the execution does not depend upon the correctness of their vision, or their degree of attention, any more than upon the retentiveness of their memory.
The declaration by the testator that the paper is his will must be made with the same distinctness and solemnity as the acknowledgment of his signature. Even if the witnesses be sent for to witness the will, yet, if they have no other information as to the character of the paper actually presented to them, there is no sufficient publication. Thus, where in one case the testator referred to the writing as a “document,” or in another, where he jokingly remarked that they had come to sign his “death warrant,” or where he acknowledged the paper as his “free will and deed,” the publication was insufficient and probate was denied. No special form of declaration is required. It may be included in the request to the witnesses to sign; it may be made by means of a question put to the testator and his reply thereto. Thus in one case it was held a sufficient publication where the will was read aloud to him in the presence of the witnesses, and he replied: “It is all right.” A deaf person may publish his will by answering written questions put to him, or by use of the sign language, provided it be understood by all the witnesses. But whatever means he adopts, the testator must in some way give the witnesses to understand that the paper they are signing is his will.
In addition to those already described there remains one more requisite to a valid execution of the will. Each of the witnesses must, at the testator's request, sign his name at the end of the instrument. It may be done by mark, or by the hand of another, but, however done, it must be with the intention of acting as such. In one case a witness to the will, instead of signing his own name, wrote the name of the testator, and the error was not discovered; but as the act appeared to have been done with the intention of attesting and without any fraud or intent to wrongfully impersonate another, the will was admitted to probate.
The manner and form of testator's request is not prescribed. In most cases it may be presumed from the acts done by the parties on the occasion of their subscription. The act of signing by the witnesses should follow that of the testator, but it is not essential that all the witnesses should affix their signature in the presence of the testator and of each other. So long as they sign at his request it is enough, though done in another room out of his sight.
The performance of these formalities, which should be successive, continuous, and contemporaneous acts, completes the execution of a valid will. No seal is necessary. A will is one of the few documents to which the affixing of that ancient token adds nothing.
The object of all these statutory requirements, which to the lay mind may seem superfluous, is to secure the testator against executing a will when he supposes he is signing something else. It is also to establish and perpetuate the evidence necessary to transfer title to property.
15. Value of attestation clause.
This is the name given to the statement to be found at the end of nearly all wills, setting forth what was done at the time of execution, i. e., that the testator on the day of its date signed, sealed, published, and declared the instrument to be his will, and that the subscribing witnesses at his request, in his presence, and in the presence of each other, did sign their names as such. This clause at times has a very real value and should never be omitted; for many a will has been admitted to probate which, but for the presence of this clause, would certainly have been rejected. Where the witnesses are dead, or have entirely forgotten the execution, a full attestation clause has force as presumptive evidence of the due observance of all the formalities recited in it, and in one case it overbore the direct contrary testimony of one of the witnesses, the other being dead.
It must not be understood that the absence of such a clause raises any presumption against the will, but it is certain that the want of one forbids any presumption in favor of it.
A codicil is an instrument, testamentary in character, executed for the purpose either of altering or supplementing a will previously made. Of these there may be as many as the testator chooses to make, and if not inconsistent they will be of equal force. A codicil does not supersede the will as does an aftermade will. It is part of the will, and the two are to be read as one entire instrument. It is not necessary that the codicil should be written on the same paper as the will to which it relates, or be attached to it. Indeed, it is rarely done. But it must always be executed with the same formalities as to signing, publishing, and attesting, as has been described with reference to a will.
The effect of a codicil upon the will, unless the contrary intent is expressed, or appears by necessary implication, is to republish the will as of the time the codicil is executed and make it speak as of that date. In such case the will and codicil are read together and construed as one instrument. A codicil frequently operates to revive a will which for one reason or another has become inoperative, such, for example, as the will of a woman which had become ineffective by reason of her subsequent marriage (see post § 23). But this is not always so, for if the original will was not legally executed, it cannot be made so in this way, no matter how many codicils there are.
How far a codicil has the effect of revoking the prior will depends upon its language. If it contains a clause expressly revoking the will, the latter of course becomes absolutely void; but if it contains no such direction, then the will is revoked only so far as its provisions are inconsistent with the later ones. A codicil which directs the disposition of all the testator's property supersedes and amounts to a total revocation of all prior wills.
Some interesting questions frequently arise out of the fact that the testator has destroyed or revoked a codicil which in turn modified or revoked a prior will. How does this effect that will? The rule is that a will, revoked by a codicil, which in turn is itself revoked by a later writing, may be