Owens v. Bennett

5 Del. 367

• Court: Superior Court of Delaware
• Decided: July 5, 1852
• Status: Published

Opinion

By the Court.

Harrington, Judge.

Though it may have been decided that the name of the testator, written by himself, at the beginning of the will, is a sufficient signing, it would be to go much further to say that as igning by the witness would satisfy our statute of wills, which requires that the witness shall both “ attest and subscribe" the will. The former construction has been regarded as a refined and even scholastic stretching of the statute; the latter cannot be made without wresting the force of the word “ subscribe,” and the apparent object of the law, in adding it to the word “ attested.” It has also been regretted that the enlarged construction of the statute in reference to signing wills, had in a great measure defeated its purpose, which was to prevent frauds ; and this mischief would be still more extensive, if both the signing of the testator’s name, and the attestation and subscription of the witnesses should be allowed to cover parts of the will below such signatures. Such is the present case. The “N. B.,” or clause disposing of the whole personal property, is below all the signatures, and is not subscribed by any but the witness, Lowe, in his attestation, evidently written after the will itself.

Layton, for the appellee.

Decree of the register affirmed.