Directory_and_Chronicle_1868 — Page 350

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IN CHINA AND JAPAN.

67

whether it appears to be signed by the testator or by some other person in his presence and by his direction, and subscribed by two witnesses, according to the provisions of the Acts of Parliament 7 Will. 4. & 1 Vict. c. 26, sect. 9,* and 15 & 16 Vict. c. 24. sect. 1,† and in no case may he proceed further if the will does not appear to be so signed and subscribed.

204. If the will appears to be signed by or for the testator and Examination of subscribed by two witnesses, the officer must then refer to the attesta- attestation clause, tion clause (if any), and consider whether the wording thereof shows

the will to have been in fact executed in accordance with the provisions

of the said Arts.

seconding to Acts

205. If there is no attestation clause to the will,—or if the attesta- Proof of excation. tion clause thereto is insufficient, the officer must require an affidavit. of Parliament. (Form 9.) from at least one of the subscribing witnesses, if either of them is living, to prove that the will was in fact executed in accordance with the provisions of the said Acts.

The affidavit must be engrossed and form part of the probate, 80 that the probate may be a complete document on the face of it.

If on perusal of the affidavit it appears that the will was not in fact executed in accordance with the provisions of the said Acts, the officer must refuse probate.

If on perusal of the affidavit it appears doubtful whether or not the will was in fact exeented in accordance with the provisions of the said Acts, the officer must lay a statement of the matter before the Judge of the Supreme Court for his directions,

If both the subscribing witnesses are dead,-or if from other circumstances no affidavit can be obtained from either of them,—resort must be had to other persons (if any) who were present at the execution, of the will; but if no allidavit of any such other person can be obtained evidence on oath must be procured of that fact and of the handwriting of the deceased and of the subscribing witnesses, and also of any circumstances that may raise a presumption in favor of the due execution of the will.

obviously illiterate

206. The officer shall not allow probate of the will, or administra- Will oftestator, blind, tion with the will annexed, of any blind person, or of any obviously or ignorant, illiterate or ignorant person, to issue, unless he has previously satisfied

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“And be it further 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,”

Where by an Act passed in the first year of the reign of Her Majesty Queen Victoria, intituled, 'An Act for the Amendmet of the Laws with respect to Wills, it is enacted, that no will shall be valid unless 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. Every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him as aforesaid, be deemed to be valid within the said enactment, as explained by this Act, if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such with shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the name of one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to he sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said Act or this Act shall be operative to give effect to any disposition or direction which is underneath or which follows it nor shall it givė effect to any disposition or direction inserted after the signature shall be made."'

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