Bartholomew v Harris
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1845 |
| Date | 12 December 1845 |
| Court | High Court of Chancery |
English Reports Citation: 60 E.R. 546
HIGH COURT OF CHANCERY
S. C. 15 L. J. Ch. 106.
Appointment. Power Will. Attestation.
[78] bartholomew v. harris. Dec. 12, 1845. [S. C. 15 L. J. Ch. 106.] Appointment. Power. Will. Attestation. A will, in order to be a good exercise of a power, was required to be signed and published by the donee in the presence of and attested by two or more credible witnesses. The donee made a will which was signed by him and was attested thus : " We, the undersigned, attest to have seen the above testator sign the above will." Held, that that clause was in effect an attestation to the publication as well as the signature of the will, and consequently that the power was well exercised. In this case a will, in order to be a good appointment of a sum of stock, was required to be signed and published by the donee of the power in the presence of and attested by two or more credible witnesses. The donee died in 1837, having made a will which appeared on the face of it to have been signed by him, but did not, either in the body or at the conclusion of it, purport to have been published by him. The clause attesting his execution was signed by three witnesses, and was as follows :- " We, the undersigned, attest to have seen the above testator sign the above will." The question was whether that attestation was sufficient to make the will a good exercise of the power. Mr. Bethell, Mr. Goodeve and Mr. G-iffard contended that the attestation was sufficient, on the authority of Mackinley v. Sison (ante, vol. viii. p. 561 ; see 568), where His Honor said : " I find no legal definition or explanation of the meaning of the term ' publication '; and, therefore, if it appears that a testatrix has produced her will to witnesses, and has signed and sealed it in their presence, and they have attested that she has done so, I must take it that she has published the document in their presence." Mr. Walker and Mr. Collins contended that the will was not a valid appointment, because the attestation, which was not general but special, expressed that only one of the two formalities prescribed by the donor had [79] been complied with; and therefore the Court, in a case where the will itself did not state that the other formality had been observed, was bound to conclude that it had been disregarded. Burdett v. Spihbwry (10 CL & Fin, 340); Moodie v. Reid (1 Madd. 516, 2 Madd. 156...
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Vincent v The Bishop of Sodor and Man and Others
...(10 C. & F. 340), and for the decision of the Vice-Chancellor in the cases of Mackinley v. Sison (8 Sim. 561), and Bartholomew v. Harris {15 Sim. 78). These cases appear to me to have introduced a difficulty as to the proper decision to be come to in the present case, which would not have e......
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Vincent v The Bishop of Sodor and Man and Others
...so technical a rule had ever been established. The only remaining cases are, Mackinley v. Sison (8 Sim. 561) and Bartholomew v. Harris (15 Sim. 78). Mackinley v. Sison, it is very difficult to deal with. The power there was to be exercised by deed, or by will signed and published in the pre......
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Vincent v The Bishop of Sodor and Man and Others
...sd\v the testatux sign the instiument, they might have well considered rt to have been a deed inter vrvos In pmitholomew v Harint (15 Sim 78), the words of the attestation clause were, "We the undersigned attest to have seen the testator sign the above will," and the Vice Chancellor there s......