Lewis v. Maris
HIGH COURT of ERRORS and
APPEALS of Pennʃylvania:
LEWIS, Appellant, verʃus MARIS, Appellee.
T
HIS was an appeal from the Decree of the Regifter of Wills, and two Juftices of the Court of Common Pleas of the county of Montgomery, who admitted an inftrument bearing date the 20th of the Tenth Month, 1786, purporting to be the laft will and Teftament of one Jephtha Lewis, the father of the Appellant, to be proved as a good Will and Teftament in writing, although it had neither been written, nor fubfcribed, by the fuppofed teftator, upon the depoftition of John Evans, a fcriverner, that it was drawn at this requeft, and conformably to his inftructions, but never read to him after it was written. This inftrument contained a devife of real eftate, and a legacy of Ł.100. for the ufe of a fchool, in the townfhip of Gwyned, and county of Montgomery; and upon the validity of that legacy the prefent controverfy arofe.–It was proved by feveral perfons, that the deceafed, in the year 1784, had talked of leaving money to a fchool ; that about three months before his death, he afked one of the deponents to be a truftee for that purpofe ; that fome months before his death he remarked to another, what better could a man do with his money than to leave it to fuch a ufe ? that he fpoke repeatedly of John Evans' making his will ; that for fear it fhould come to the knowledge of his family, he defired it to be left with John Evans; that being indifpofed when it was drawn, he defired John Evans to call upon him again with it ; that when John Evans called with it again, he was too far gone to read and attend to it ; and that the difpofition of the real eʃtate contained in the paper produced, was the fame which the deceafed had, before his death, 
defired his brother to mention to John Evans : But John Evans was the only witneʃs who proved any inftructions to have been given in refpect to the legacy of Ł.400.– It appeared, likewife, that the fame fcriverner had drawn another Will for the deceafed in the year 1779, which was left in fimilar circumftances, without the fubfcription of the teftator, or any other atteftation than that of the drawer ; but this circumftance was made no ufe of in the argument.
Wilcocks and W. M. Smith for the Appellants.–We contend 1ft, That there is only one witneʃs to prove the inftrument in queftion ; and, 2dly, That two witneƒƒes are indifpenfibly neceffary to the legal eftablifhment of a laft Will and Teftament.
I. The ƒirʃt point, arifing from the facts, muft be determined by the depofitions ; and, as no regard can be paid to a recital of the loofe expreffions which were ufed by the fuppofed teftator, antecedent to the inftructions for drawing his will, it is clear, that the only evidence to fupport the legacy in favor of the fchool, muft be founded upon the depofition of John Evans, to whom thofe inftructions were given.
II. We fhall proceed them, to confider the ʃecond point, which depends upon the conftruction of the Act of Affembly, paffed in the year 1705, ‘‘ concerning the probates of written and noncupative Wills, and for confirming devifes of lands.’’ It is there faid, that
‘‘ all wills in writing, wherein, or whereby any lands, tenements,
‘‘ or hereditaments, within this province, have been, are or fhall be
‘‘ devifed (being proved by two or more credible witneƒƒes, upon their ʃo
‘‘ lemn aƒƒirmation, OR BY OTHER LEGAL PROOF IN THIS PROV
" INCE &C.) fhall be good and available in law, for the granting,
‘‘ conveying, and affuring of the lands, or hereditaments, thereby be-
"qeathed.’’ ‘‘ 1 State Laws. 30. The queftion, therefore, refts upon the meaning of the words, or other legal prooƒ in this province; and, in order to afcertain that, it may be proper to take a fhort, retrofpective, view of the general doctrine, refpecting the legal atteftation of Wills and Teftaments. As the probate of Wills was not a matter originally of common law jurifdiction, the decifions have neceffarily been drawn from the civil law, the ecclefiaftical law, and the law of nations, engrafted upon the general cuftoms of the realm of England. By the civil law, indeed, feven witneffes were required ; but his excefs being reformed, firft by the ecclefiaftical law, which required three witneffes in fome cafes, and only two in others, and then by the general cuftoms of the kingdom, it is fettled in the moft authorized books to be fufficient, that the will and mind of the teftator fhould appear by two competent and difinterefted witneffes. Swinb. 5.6.45.46. 3. Salk. 396. For, the general cuftoms of the kingdom are not further controuled, than by the jus gentium, which is likewife fatisfied with the atteftation of two witneffes. Swinb. 47. Goil.Orph. Leg. 3.8.10. and where, indeed, the difpofition is for pious uʃer, the cannon law, in this refpect, correfponds with the jus gentium, although too ʃecular purpoʃes, it ftill requires
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two witneffes, one of whom muft be the minifter. God. Orph.Leg. 8.10. In the cafe of Codicils, the civil law required only five witneffes, but the law of England requires the fame proof, as in the cafe of Teftaments, that is two witneffes. id. 20. Two witneffes, therefore, are ʃuʃʃicient, and regularly two witneffes are alfo neceʃʃary to the legal proof of a laft Will and Teftament. Swinb. 343. 1 Equity. Abr. 5. Bac. Tit. Teʃt. and it may be vain to have no more than one. Swinb. 65. Where children have been confidered as incompetent witneffes to their father's Will, a child, being the third witnefs, was adjudged as none, and the will fet afide. 1 P. Wms. 10. 267. S.P. and the neceffity of two witneffes to a Will, is an idea as ancient as the time of Glanvil. Glan. b. 7. c. 5. Nor does a prohibition lie to the ecclefiaftical Court, for refufing, by one witnefs, to eftablifh a teftamentary writing. God. Orph. Leg. 66. 2 Burn. Ecc. Law. 243. 2 Salk. 547. L. Raym. 220. It is certain, that the ftatute of frauds has not made any alteration in refpect to written Teftaments of goods and chattels ; and one witnefs, by the civil law, being as no witnefs at all, the proof of fuch a Teftament can only be made by two fufficient witneffes. 2 Burn. Eccl. Law. 524.
It is true, that we have produced no adjudged cafe, under the 32 Hen. 8. c. I. fhewing that two witneffes are neceffary to eftablifh fubfequent to the ftatute, which, in this point, make no difcrimination beween Wills of lands, and Teftaments of chattels, that it may be fairly infered that the rule of proof, founded upon jus gentium, and the general cuftoms of England, is alike applicable to evey fpecies of teftamentary writing. For the caufe of the appellant, however, it is fufficient, that no doubt can remain of its ftrict and invariable application, in the cafe of Teftaments for the difpofition of perfonal property ; and, being thus incontrovertibly eftablifhed in that country, from which we have, in general, copied the principles and practice of jurifprudence, it will appear by various acts of the Legiflture, antecedent to the paffing of the law in queftion, and even by the original ftipulations in England, that the neceffity of two witneffes to the legal probate of a laft Will and Teftament, has been exprefsly recognized and adopted in Pennʃylvania. Thus, among the laws agreed upon in England, it is provided, that ‘‘ all
‘‘Wills and Writings, attefted by two witneffes, fhall be of the fame
‘‘force as to lands, as other conveyances &c.’’ Prov.law. in App. p. 4. art. 15. From which it feems to have been the intention of the Proprietary and firft emigrants, to obviate every doubt, and, unequivocally, to place the proof of Teftament of chattels ; and this ftipulation was formerly enacted into a law, foon after the meeting of the General Affembly of the Province. Ibid p. 7. c. 45. The law enabling Foreigners to devife lands, likewife makes two witneffes neceffary to the Will.[♦] Prov. Laws. vol. 2. p. 109. old Edit. Nay, the
Legiflature, at that day, carried the matter fo far as to require the teftimony of two witneffess in all cafes. Prov. Laws. in app. p. 3. c. 36. It is not, therefore, unreafonable to fuppofe, that it was intended, by the act of 1705, to relax the rules of proof on a fubject of fo much folemnity and importance, as a laft Will and Teftament?– and, more efpecially, when by the fame law Sect. 6. it is declared, that no Will in writing, concerning any goods and chattels, or perfonal eftate, fhall be repealed by word of mouth only, nor fhall any nuncupative Will be eftablifhed, but upon the teftimony of two, or more, witneffes ? Sect. 3.
This act then, muft have proceeded upon the well known, principles and decifions refpecting probabtes ; and the conftrution ought to be fuch, that no word fhould be rendered void, fuperfluous, or infignifcant. Hence, by the words, or other legal prooƒ, the proof meant by the Legiflature, muft be that, which the pre-exifting laws and cuftoms of England, had made neceffary to a laft Will and Teftament, and not merely that, which is fufficient to convict a man of an offence, or to charge him with a debt :for, if this were not the meaning, itwould be fuperfluous to fay, that the probabte fhall be by two, or more, credible witneƒƒes, upon their ʃolemn aƒƒirmation OR by other legal prooƒ, fince the latter fentence would naturally comprehend and fuperceded the former. Such, indeed, has been the interpretation of the Regiƒter's Court of Pennʃylvania, in 1773.
But, when we confider the religious delicacy of thofe perfons, who chiefly compofed the Legiflative body when the act was paffed, may we not prefume that this mode of expreffion has been ufed, in order, on the one hand, to affert the right of giving teftimony upon ʃolemn aƒƒirmation ; and, on the other, to avoid the direct mention of teftimony upon oath ? This conjecture is, in fome degree, fupported by the circuitous manner in which many other acts of Affemnly prefcribe the forms of proof ; Prov. Law. 2. 3. 4. 5.5.6. 20.24.25.37.37.42.45.45. for, the firft time that an atteftation upon oath is exprefsly mentioned, occurs in the year 1715, ten years after the paffing of the law in queftion. Ibid. 76.
If, then, laws which relate to the fame fubject, muft be taken together, there can be no doubt from a connected view of the laws of England, the acts of Affembly cited from the appendix of the late Province laws, the different parts of the very act in queftion, and the practice of our Courts, that, whether qualified by aƒƒirmation, or by oath, two witneffes areneceffary to eftablifh a laft Will and Teftament, and without two there can be no legal prooƒ. The witneffes, was admit, need not be prefent at the acutal execution of the inftrument: but, if it is written by the Teftator himfelf, two witneffes muft, at leaft, prove his hand writing ; and, if it be written by another perfon, two witneffes muft prove that it contains his laft Will and difpofition.
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Lewis and Lawrence, for the Appellee.– The Appellant in contravention of his father's wifhes and benevolence, endeavours to fet afide the Will, in order to defeat the charitable donation which it contains : Should there be a doubt, therefore, upon the fubject, it will operate againft fo ungracious an attempt ; but we conceive that the ftrict principles of law will be a fufficient prevention. Before the ftatute of Wills, 32 Hon. 8. c. 1. every man was at liberty to difpofe of his perfonal eftate ; and as the difpofition was, in that refpect , governed by the civil and ecclefiaftical laws, according to their inftitutions, two witneffes were neceffary to the probate of every Teftament.
But when a ftatute, without faying any thing about the proof, gives a new power so devife, unknown in the civil and ecclefiaftical codes, fhall we refort to them, inftead of the common law, to afcertain, in what form, and by what number of witneffes, the exercife of that power ought to be attefted ? This would furely be an abfurd and improper deviation, fince the Courts of civil and ecclefiaftical law can only interpofe with refpect to Teftaments of chattels, and cannot take cognizance of wills for the conveyance of lands. It may, indeed, feem ftrange, that two witneffes fhould ever have been requifite to the former, and only one to the latter ; but they are matters not regulated by the fame legiflature ; fo that when the Parliament, authorizing a devife, requires two witneffes to prove it, this is not done becaufe, in fimilar cafes, the civil law requires a fimilar atteftation, but on account of the fitnefs and expediency of the thing itfelf.
It is true, however, that, as on the other fide it has not been fhewn that two witneffes are neceʃʃary, neither have we been able to difcover a cafe, in which it is exprefsly adjudged, that, under the ftatute of 32. Hen. 8. c. 1 one witnefs is ʃuʃʃicient to eftablifh a Will of lands ; but, as all the authorities and abridgments that have been produced, refer exclufively to the cafe of a Teftament of chattels, and are uniformly filent with refpect to the difpofition of real eftate, it is evident that the writers regarded the feparate jurifdictions, to which thefe teftamentary inftruments refpectively belonged, and were aware of the different degrees of proof, upon which their authenticity depended. Befides the cafes that have been already cited for the applicants (which merely ftate with fome variations, that a notary having received inftructions for drawing a will, and having accordingly drawn it, did not arrive ‘till the party was dead) there are many others of a fimilar defcription. Vin. tit. Deviʃe. pa. 117. pl. 2.4.5.6.14. 15. pa. 123. pl. 9. pa. 122. pl. 3. But, in this long catalogue, not a word is faid to fhew, that two witneffes were prefent at the execution of the will, or heard the inftructions which were given for drawing it. Nay, in an action brought by an Heir at law againft a Devifee, we find that the inftructions for drawing the will were given to an individual, and there is not the leaft information of another witnefs being prefent at any part of the tranfaction. Swinb. 56 Thus, likewife, when a man defire another to write
his Will, who accordingly took fhort notes at the time, went home, and reduced them into form, but did not return ‘till the Teftator was dead, this, neverthelefs, was adjudged to be a good Will within the ftatute. Swinb. 6. and even where the notes were not reduced to from, ‘till after the Teftator's death, the Will was eftablifhed. Swimb. 51. 56. 113. Cro. E. 100. For, the principle is explicitly laid down in Blackʃtone, that ‘‘ as to written Wills they need not any witnefs of their publication&c. A Teftament of chattels, written in the Teftator's own hand, though it has neither his name nor feal to it, nor witneffes prefent at its publication, is good : And though written in another man's hand, and never figned by the Teftator, yet, if proved to be according to his inftructions and approved by him, it hath been held a good Teftament of the perfonal eftate.’’ 2 Black. Com. 501.
The cafes that are regulated by the ftatute of frauds, 29 Car. 2. 3. are clearly of no authority here ; but thofe which have been determined under the ftatute of 32 Hen. 8. c. 2. are applicable to the Act of Affembly, and ought to govern in the expofition. By this ftatute, no proof of figning and attefting is prefcribed, and, therefore, before the paffing of the act in queftion, though two witneffes were neceffary to prove a Teftament of chattels, one was fufficient, in Pennʃylvania, to eftablifh a Will of lands. What then is the charge introduced by the Legiflature? In the conftruction of ftatutes, every part muft receive effect ; for, it cannot be prefumed that unneceffary words have been ufed ; Cowp. 558, and, in order to give effect to every part, it is natural to enquire what was the fubject under confideration, and what were the objects and intentions of thofe who framed the law? When, therefore, the Legiflature was confidering by what proof Wills and Teftaments ought to be eftablifhed, we may reafonably prefume that they took into contemplation the general principles of evidence, and finding that prefumptive proof, or, in other words, fuch circumftantial teftimony as fatisfied the mind, was fufficient in every other inftance, whether on a queftion of property or a life, might they not afk, why it fhould be rejected here? and, if a competent anfwer were wanting (as it certainly muft be) would they not wifely refolve to deftroy a diftinction, for which there exifts no folid foundation in reafon, or the nature of things? The Legiflature then, not implicitly adhering to the civil or ecclefiaftical inftitutions, and placing the Probate of Wills of lands, and of Teftaments of chattels, upon the fame looting, have, in effect, declared that thofe inftruments fhall, if poffible, be authenticated by two, or, more, credible witneʃʃes on their ʃolemn aƒƒirmation ; but, if this cannot be obtained, then, that other legal prooƒ, or the fame circumftantial and corroborative evidence, which decides the other moft important interefts of men, fhall, in this cafe, likewife be received.
Such, we contend, was the intention of the Legiflature ; and what conftitutes legal prooƒ, it is incontrovertibly the province of the common law, and not of the civil law, to judge and determine. Let us fuppofe that a man directs his Will to be drawn, that it is
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executed in the prefence of the drawer, that the Teftator informs his friends by whom it was drawn, and that, accordingly, after his death, it is found in the hand writing of that perfon:– under thefe circumftances, the confeffion of the party, correfponding with the teftimony of the Scrivener, and corroborated by the hand writing, would certainly amount to legal prooƒ, at common law ; but, purfuant to the adverfe doctrine, the will could not be eftablifhed, for there are not two witneffes to the execution, nor to the inftructions for drawing it. Again ; if a rain fays, ‘‘ my Will is in a certain drawes,’’ and, after his death, an inftrument, purporting to be his Will, is found in that drawer ; this, lifewife, would be deemed legal prooƒ, and yet it wants the attention of two witneʃʃes. Or, fuppofe it had been faid, ‘‘ I am going to my Notary (illegible text) direct him to draw my Will, and I mean to give half my eftate to A, and the other half to B.’’ if, after his death, the notary produced an inftrument drawn in that manner, the circumftances of the cafe would furnifh a legal prooƒ, but ftill there are not two witneʃʃes to the Will.
If two witneffes are required in all cafes, the act muft be taken to intend, witneffes prefent at the execution of the Will ; and fo the expreffion or other legal prooƒ becomes infignificant and nugatory. Nor, confiftently with the rules of grammar and conftruction, can the argument be admitted, which is founded upon the religious Scruples of the Affembly that paffed the act ; for, if the Legiflature fought to avoid the mention of an oath, the fentence muft have been differently arranged, and would probably have run in this way ; ‘‘Wills&c. being proved on the ʃolemn aƒƒirmation, or other legal prooƒ, oƒ two or more credible witneʃʃes,&c. ’’ but, as it now ftands, the Appellant‘s interpretation is trained and improbable ; while the Latitude, for which we contend, is not without precedent: for, by the ftatute of James I. the mother of a dead child, which, if it had lived would have been a baftard, is required to give pofitive proof by one witneʃs, at leaft, that it was born dead, or fhall fuffer as in cafe of murder ; yet, in trials under this law, circumftantial evidence has always been admitted here, as well as in England, to work an acquital. This is, indeed a penal ftatute ; but there is nothing which the law regards more favorably than a laft Will, and Judges have ever been folicitous to fupprt the intention of the Teftator.
Is there not fufficient evidence, then, that the Will in difpute contains the intention of the Teftator? Every part of it, except that which relates to the legacy of Ł.400 ; is directly proved by two witneffes, the Scrivener, who drew it, and the Teftator's brother, who carried the inftructions, and, even with refpect to the legacy, there is the pofitive teftimony of one witnefs, corroborated with fuch circumftances as force conviction on the mind—fuch circumftances as ought, we fay, to be received, under the act of Affembly. The Teftator, avowing that he did not mean to leave all his eftate to his children, had for years before his death uniformly declared his intention of bequeathing a legacy for the benefit of a School ; and but a (illegible text) he requefted one of the witneffes to be a
Truftee for that rule. When, therefore, we find the fame intention expreffed in the inftrument produced, and the Scrivener depofes that it is expreffed comformably to the inftructions he received, there cannot be a doubt of out being in full poffeffion of the laft Will and Mind of the Teftator. The Will is, therefore, clearly eftablifhed by legal prooƒ within the letter and fpirit of the act ; which, by thus iffuing a comprehenfive, though plain and fatisfactory, mode of expreffion, intended to obviate the many mifchiefs that had arifen, from the ftrict rules of proof required by the civil and ecclefiaftical law.
Wilcocks, in reply.– It is conceded, that, according to the law in England. 2 Teftament of chattels muft be proved by two witneffes ; but it is argued by the adverfe counfel, that under the ftatute of 32 Hen. 8. c. 1.a. Will of lands is fufficiently proved by one witnefs of the Appellee, relate to the folemnities of making a Will, or the degree of proof that is required : the only point agitated or determined in any them, is, whether the inftrument in queftion be a good Will in writing, or not ? and though there is no exprefs adjudication upon the fubject, we find it faid that two witneffes and neceffary to a Will, faving that, in caʃe oƒ land, the folemnity of writing is alfo neceffary. Swinb. 6 which is a ftrong implication in favour of the Appellant's doctrine.
But the prefent controverfy muft be decided, after all, by the act of Affembly, which was made with a full knowledge of the ideas and determination in England, relative to the probate of teftamentary writings ; and there appears from the feveral prior acts of the Legiflture of Pennʃylvania, a fixed intention to adopt the practice of that country. If, indeed, by the words, or other legal prooƒ, lefs than two witneffes were meant, this abfurdity will be obvious, that in the firʃt part of the fentence , we are called upon to prove the Will by two, or more, credible witneffes, upontheir ʃolemn aƒƒirmation ; and that in the cloʃe of it, we are allowed to make the proof by the mind ; fo that the words–“ two or lefs than two witneffes.” Thus, likewife, the teftimony of two witneffes, or of leʃs than two, under any circumʃtances, is made tantamount to the teftimony of two or more witneʃʃes, upon their ʃolemn aƒƒirmation; –a conceffion which, it is not probable, a Legiflature, compofed of ₢akers, would have been eafily induced to make. On the contrary, the defign of this claufe feems to have been, to prevent any doubt of a man's right to deliver his teftimony, conformably to the dictates of his confcienfcious fcruples ; and, having provided that the proof might be made by two, or more, credible witneffes, upon their ʃolemn aƒƒirmations, it was neceffary to proceed to admit other legal prooƒ ; for, if the Legiflture had ftopped there, an aƒƒirmation would be the only ƒorm oƒ atteʃtation by which a Will could be eftablifhed ; and as the law allowed no perfon to affirm, who was not confcientioufly fcrupulous
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of taking an oath, it follows, generally, that none but a ₢uaker could be a witnefs to a Will
Certain it is, therefore, that other legal prooƒ, is placed in oppofition to ʃolemn aƒƒirmation, and not to the number oƒ witneʃʃes ; and the claufe, fairly conftrued, amounts to this, that ‘‘ Wills &c. being proved by two, or more, credible witneffes, under any other legal qualiƒication, fhall be good an available in law ; ’’ – the fame number of witneffes being neceffary to the probate, whatever may be the form of atteftation.
This conftruction is perfectly conformable to the caution and to the liberal principles of the Legiflature of that day. They firft take care to eftablifh a mode of proof according to their own religious perfuafion, and then, under the general expreffions–‘‘other legal proof’’– would admit all modes of atteftation, which other the law of that day, or any future time, fhould recognizes.
Without fuch precautions, how precarious would be the fituation of property! In the laft moments of life, when the body is depreffed with ficknefs, the underftanding impaired by age, and the mind agigtated with doubt and apprehenfion, we may eafily conceive the fuccefutal operations of artifice and fraud. The government of every wife and enlightened nation has endeavoured, therefore, to protect the imbecility and weaknefs of that ftate, from the force or cunning of interefted men : nor is it juft to the reputation of this country, to fuppofe, that her Legiflature alone, has left the proof of the laft, and moft folemn, act of the citizens, to more circumftances and conjecture.
The Court took time to confider of their Judgment, which was the next day delivered by the chief justice.
M‘KEAN, Chieƒ Juʃtice.– This caufe comes before us upon an appeal from the Regifter of Wills and two Juftices of the Court oƒ Common Pleas of the county of Montgomery ; and, it is agreed, that there is but one queftion for the determination of the Court ; to wit, whether a Will not written by the Teftator, or fubfcribed by him, but put into writing by (illegible text) directions, and proved to be fo only by the perfon who drew it, ought to be eftablifhed as a good and perfect Will and Teftament?
The difpofition of paper by Will, was certainly the firft made of conveyance ufed among (illegible text) ; and fome authors, in tracing its antiquity, have informed us, that Noah made a Will, devifing the whole world to his fons, according to their refpective proportions. The conveniency of the thing (illegible text) rendered it univerfal, cuftom, at length, became a law for its fupport and different folemnities,or forms, were prefcribed by different Legiflatures, in order to fit the authenticity of a teftamentary writing. Thus, by the Roman law, it was originally requifite that a Will fhould be in writing, fubfcribed by the Teftator, if he could write before feven witneffes,
and, if, he could not write, then publifhed by him in the prefence of eight witneffes ; but this number was properly reduced to two in the time of Juʃtinian. By the civil and ecclefiaftical laws, as they prevail in England, the ableft writers concur in faying, that two witneffes are required, and that two are fufficient to prove a Will. The ftatute of 32. H. 8. c. 1. (which is merely explained by the 34. and 35. of the fame reign) enables a man by his Will in writing to difpofe of all his foccage lands, and two thirds of his lands held in capite ; which, by the fubfequent operation of the 12. Car. 2. c. 24. extends to all his real eftate. It is incontrovertibly fettled, however, that neither the ftatute of Henry 8. nor the ftatutes by which it is explained, made any alteration in refpect to Teftaments of goods and chattels ; and therefore, they are ftill regulated, as they always were, by the civil and ecclefiaftical law, which, as it has been already remarked, requires the atteftation of two witneffes.
As this, then,was the eftablifhed rule in England, and as by the Charter from Charles the Second to William Penn the laws of England, relating to property, were to be the laws of the Province, until altered by the Legiflature of Pennʃylvania, we muft now enquire, whether any act of our Legiflature has fubftitued another mode of proof?
It is contended, on the part of the Appellees, that the law enacted in the year 1705, has placed Wills of real eftate, and Teftaments of perfonal property, upon the fame footing ; and that any proof which would be fufficient to convince a Jury of a fact in iffue, is, by that law, made competent to the probate of a laft Will and Teftament. It has been argued, likewife, by the fame counfel, that, even in England, from the paffing of the ftatute of 32 Hen. 8. c. 1. ‘till the paffing of the ftatute of frauds, 29. Car. 2. c. 3. the pofitive teftimony of witneffes was not required, but that any common law evidence, founded upon circumftances, was fufficient to prove a Will of lands. On this point, there is, perhaps, no expreʃs adjudication to be met with in out books ; yet there are cafes in which the neceffity of two witneffes to a Will of lands, femms ftrongly to be implied. God. Orph. Leg. 15. Dy. 72. Plow. 345. But the caufe before the Court muft finally depend upon a proper conftruction of the act of Affembly ; which has declared, that ‘‘ Wills &c. being proved ‘‘ by two or more credible witneffes, on their folemn affirmation, ‘‘ or by other legal proof, fhall be good and available in law ; ’’ and as all teftamnetary writings, whether for the difpofal of real, or perfonal, eftate, are fubject, its this refpect, to one rule, the whole difpute refts upon the words, or other legal prooƒ.
In the conftruction of ftatute, the fame principle fhould be obferved, which prevails with refpect to Wills ; and the intent and meaning of the Legiflature in the former, ought to be as carefully fought after, and as faithfully purfued, as the intent and meaning of the Teftator in the latter. What then was the intention of the Affembly in the paffing this act? The Appellees alledge, that it was to admit common law evidence in the cafe of Wills ; and that other
1788.
legal prooƒ, is an alternative oppofed to the number oƒ witneʃʃes. But to this, it has been anfwered, that lefs proof than two witneffes, could not, confiftently with the reafon and nature of the fubject, be intended ; and that other legal prooƒ, is put in oppofition to ʃolemn aƒƒirmation, in order to admit the atteftation of an oath,– whether adminiftered upon the Goʃpels to a Chriʃtian, or upon the Pentateuch to a Jew ; whether with the folemnity of an uplifted hand, according to fome fectaries ; or with the ceremonial of the hand placed beneath the thigh, as it is practifed by the Great nations.
This appears, upon the whole, to be the genuine expofition of the act ; and the adverfe doctrine is pregnant with fo much abfurdity and inonveniency, that it ought not to be imputed to the Legiflature, not ought it to receive the fanction of the Court. Befides, we find, that this very act requires the teftimony of two, or more, witneffes to the probate of a nuncupative Will, and likewife, to the revocation of a Will ; and every principle which could make it neceffary in thofe inftances, muft, a ƒortiori, operate in the cafe before us : For, it could not be deligned, that greater folemnity fhould be obferved in a verbal Teftament, or in repealing, than in making, a laft Will and Teftament ;– an act of the moft ferious and important nature, not only as it affects thee Teftator, but as it affects the peace and welfare of pofterity.
In fhort, from the uniform tenor of the Acts of Affembly, from the practice of the Courts, and from the other analogous fections of the fame law, it is evident that the Legiflature meant to require two witneffes, in proof of every teftamentary writing, whether for the difpofition of real, or perfonal eftate. This opinion, in which the Court unanimoufly concur, we are happy to deliver ; for, it would be dangerous indeed, were the idea tolerated for a moment, that a notary, or any individual, could alone, according to the oppofite conftruction, prove the validity of the Will which he had written. By fuch means the very purpofe of Wills might be defeated, and the fulleft fcope given to foul and fraudulent impofitions.
BRYAN, Juʃtice.–The witnefs, on the prefent occafion, is indubitably a man of fair and upright character; and, therefore, it is the more particularly to be obferved, that the opinion of the Court is founded upon the indifpenfible neceffity of having two witneffes to the probate of every Will.
by the court : Let the fentence and proceedings of the Regifter's Court be reverfed.