SIVINIA BROWN, Appellant, vs. MARY ANN BROWN, Appellee.
[January Term, A. D. 1861.]
Appeal from the Court of Quarter Sessions and Common Pleas, Sinoe County.
This case is before the court on an appeal from the judgment of the court below, excepting to the verdict of the jury and decision of the court respecting the will which was tried before it, purporting to be the last testament of Joseph Brown, late of Sinoe County.
With the record before the court, giving as it does the principle upon which the decision was founded, it is manifest that all legal principles governing, or that ought to govern the execution of wills, were overlooked, and thereby made an instrument a will that has no feature of a will. An elaborate comment would not be consistent with the present case, as from the document before the court and the records accompanying it, it is clear that no decision in the most remote sense can be entertained favorable to the instrument called the will of Joseph Brown, deceased. “No will shall be valid unless it shall be in writing, and executed in manner hereafter 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 to the will in the presence of the testator, but no form of attestation shall be necessary. (i Vict. c. 26.) Wills must be subscribed by the witnesses themselves, and therefore when one of the witnesses, in the presence of the testator, subscribes to the will, first for himself, and then for the other witness, both being present at the same time, the will was registered.
The last will and testament of individuals is important, and it ought, for the good of those who are to be interested, to be intelligent and clear, and without which the wills of dying persons must prove abortive against long contemptible designs and arrangements.
The contents of all wills ought to be duly explained by the testator to the witnesses, and they also ought to have a perfect knowledge of the feature of the will.
The court has arrived at the above conclusions in the premises of this contested will case now before it, without entering into detailed remarks to answer the many points presented in the arguments given before the court, as reflection and legal research must lead to satisfactory results and information respecting wills.
Therefore it is the judgment of this court that the instrument coming up from the court below on appeal as being a will, by judgment of said court confirming it to be such, is not a will. And it is hereby decreed that the judgment of the court below for the appellee must be reversed, and a mandate be issued directing such reversal, with all costs in this court.