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.
KIRKBRIDE et al. Plfs. in Err.verʃus DURDEN.
T
HE Plaintiffs in Error had executed a Bond, bearing date the 23d of October, 1784, to the Defendant, with a warrant to confefs Judgment thereon, directed ‘‘ To Wm. Lewis, Attorney of the ‘‘ Court oƒ Common Pleas at Newtown, in the county of Bucks, or to
