This was an appeal from the Decree of the Register of Wills, and
two Justices of the Court of Common Pleas of the county of
Montgomery, who admitted an instrument bearing date the 25th of the
Tenth Month, 1786, purporting to be the last will and Testamont of
one Jephtha Lewis, the father of the Appellant, to be proved as a
good Will and Testament in writing, although it had neither been
written, nor subscribed, by the supposed testator, upon the
deposition of John Evans, a scrivener, that it was drawn at his
request, and conformably to his instructions, but never read to him
after it was written. This instrument contained a devise of real
estate, and a legacy of L.400. for the use of a school, in the
township of Gwyned, and county of Montgomery; and upon the validity
of that legacy the present controversy arose. It was proved by
several persons, that the deceased, in the year 1784, had talked of
leaving money to a school; that about three months before his
death, he asked one of the deponents to be a trustee for that
purpose; that some months before his death he remarked to another,
what better could a man do with his money than to leave it to such
a use? that he declared he did not intend all his estate for his
child; that he spoke repeatedly of John Evans's making his will;
that for fear it should come to the knowledge of his family, he
desired it to be left with John Evans; that being indisposed when
it was drawn, he desired 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 disposition of the real estate
contained in the paper produced, was the same which the deceased
had, before his death, desired
Page 1 U.S.
278, 279
his brother to mention to John Evans: But John Evans was the
only witness who proved any instructions to have been given in
respect to the legacy of L. 400. It appeared, likewise, that the
same scrivener had drawn another Will for the deceased in the year
1779, which was left in similar circumstances, without the
subscription of the testator, or any other attestation than that of
the drawer; but this circumstance was made no use of in the
argument. Wilcocks and W. M. Smith for the Appellants. We contend
1st, That there is only one witness to prove the instrument in
question; and, 2ndly, That two witnesses are indispensibly
necessary to the legal establishment of a last Will and Testament.
I. The first point, arising from the facts, must be determined by
the depositions; and, as no regard can be paid to a recital of the
loose expressions which were used by the supposed testator,
antecedent to the instructions for drawing his will, it is clear,
that the only evidence to support the legacy in favor of the
school, must be founded upon the deposition of John Evans, to whom
those instructions were given. II. We shall proceed then, to
consider the second point, which depends upon the construction of
the Act of Assembly, passed in the year 1705, 'concerning the
probates of written and noncupative Wills, and for confirming
devises of lands.' It is there said, that all wills in writing,
wherein, or whereby any lands, tenements, or hereditaments, within
this province, have been, are, or shall be devised (being proved by
two or more credible witnesses, upon their solemn affirmation, or
by other legal proof in this province &c.) shall be good and
available in law, for the granting, conveying, and assuring of the
lands, or hereditaments, thereby given, or devised, as well as of
the goods and chattels thereby beqeathed.' 1 State Laws. 30. The
question, therefore, rests upon the meaning of the words, or other
legal proof in this province; and, in order to ascertain that, it
may be proper to take a short, retrospective, view of the general
doctrine, respecting the legal attestation of Wills and Testaments.
As the probate of Wills was not a matter originally of common law
jurisdiction, the decisions have necessarily been drawn from the
civil law, the ecclesiastical law, and the law of nations,
engrafted upon the general customs of the realm of England. By the
civil law, indeed, seven witnesses were required; but this excess
being reformed, first by the ecclesiastical law, which required
three witnesses in some cases, and only two in others, and then by
the general customs of the kingdom, it is settled in the most
authoritative books to be sufficient, that the will and mind of the
testator should appear by two competent and disinterested
witnesses. Swinb. 5. 6. 45. 46. 3 Salk. 396. For, the general
customs of the kingdom are not further controuled, than by the jus
gentium, which is likewise satisfied with the attestation of two
witnesses. Swinb. 47. God. Orph. Leg. 3. 8. 10. and where, indeed,
the disposition is for pious uses, the cannon law, in this respect,
corresponds with the jus gentium, although for Ecular purposes, it
still requires
Page 1 U.S.
278, 280
two witnesses, one of whom must be the minister. God. Orph. Leg.
8. 10. In the case of Codicils, the civil law required only five
witnesses, but the law of England requires the same proof, as in
the case of Testaments, that is two witnesses, id. 20. Two
witnesses, therefore, are sufficient, and regularly two witnesses
are also necessary to the legal proof of a last Will and Testament.
Swinb. 343. 1 Equity. Abr. 5 Bac. Tit. Test. and it may be vain to
have no more than one. Swinb. 65. Where children have been
considered as incompetent witnesses to their father's Will, a
child, being the third witness, was adjudged as none, and the will
set aside. 1 P. Wms. 10. 267. S. P. and the necessity of two
witnesses 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 ecclesiastical
Court, for refusing, by one witness, to establish a testamentary
writing. God. Orph. Leg. 66. 2 Burn. Ecc. Law. 243. 2 Salk. 547. L.
Raym. 220. It is certain, that the statute of frauds has not made
any alteration in respect to written Testaments of goods and
chattels; and one witness, by the civil law, being as no witness at
all, the proof of such a Testament can only be made by two
sufficient witnesses. 2 Burn. Eccl. Law. 524. It is true, that we
have produced no adjudged case, under the 32 Hen. 8. c. 1. showing
that two witnesses are necessary to establish a Will of real
estate; but we have cited so many authorities of a date subsequent
to the statute, which, in this point, make no discrimination
between Wills of lands, and Testaments of chattels, that it may be
fairly infered that the rule of proof, founded upon the jus
gentium, and the general customs of England, is alike applicable to
every species of testamentary writing. For the cause of the
appellant, however, it is sufficient, that no doubt can remain of
its strict and invariable application, in the case of Testament for
the disposition of personal property; and, being thus
incontrlvertibly established in that country, from which we have,
in general, copied the principles, and practice of jurisprudence,
it will appear by various acts of the Legislature, antecedent to
the passing of the law in question, and even by the original
stipulations in England, that the necessity of two witnesses to the
legal probate of a last Will and Testament, has been expressly
recognized and adopted in Pennsylvania. Thus, among the laws agreed
upon in England, it is provided, that 'all Wills and Writings,
attested by two witnesses, shall be of the same force as to lands,
as other conveyances &c.' Prov. Law. in App. p. 4. art. 15.
From which it seems to have been the intention of the Proprietary
and first emigrants, to obviate every doubt, and unequivocally, to
place the proof of wills of lands, upon the same footing with the
proof of Testaments of chattels; and this stipulation was formally
enacted into a law, soon after the meeting of the General Assembly
of the Province. Ibid p. 7. c. 45. The law enabling Foreigners to
devise lands, likewise makes two witnesses necessary to the Will.*
Prov. Laws. vol. 2. p. 109. old Edit. Nay, the
Page 1 U.S.
278, 281
Legislature, at that day, carried the matter so far as to
require the testimony of two witnesses in all cases. Prov. Laws. in
app. p. 3. c. 36. Is it not, therefore, unreasonable to suppose,
that it was intended, by the act of 1705, to relax the rules of
proof on a subject of so much solemnity and importance, as a last
Will and Testament? and, more especially, when by the same law
Sect. 6. it is declared, that no Will in writing, concerning any
goods and chattels, or personal estate, shall be repealed by word
of mouth only, nor shall any nuncupative Will be established, but
upon the testimony of two, or more, witnesses? Sect. 3. This act
then, must have proceeded upon the well known principles and
decisions respecting probates; and the construction ought to be
such, that no word should be rendered void, superfluous, or
insignificant. Hence, by the words, or other legal proof, the proof
meant by the Legislature, must be that, which the pre-existing laws
and customs of England, had made necessary to a last Will and
Testament, and not merely that, which is sufficient to convict a
man of an offence, or to charge him with a debt: for, if this were
not the meaning, it would be superfluous to say, that the probate
shall be by two, or more, credible witnesses, upon their solemn
affirmation, or by other legal proof, since the latter sentence
would naturally comprehend and supercede the former. Such, indeed,
has been the interpretation of the Register's Court of
Pennsylvania, previously to the Revolution, by the decree of a
gentleman of great professional abilities, Wm. West's case before
the Register General of Pennsylvania, in 1773. But, when we
consider the religious delicacy of those persons, who chiefly
composed the Legislative body when the act was passed, may we not
presume that this mode of expression has been used, in order, on
the one hand, to assert the right of giving testimony upon solemn
affirmation; and, on the other, to avoid the direct mention of
testimony upon oath? This conjecture is, in some degree, supported
by the circoitous manner in which many other acts of Assembly
prescribe the forms of proof; Prov. Law. 2. 3. 4. 5. 5. 6. 20. 24.
25. 37. 37. 37. 42. 45. 45. for, the first time that an attestation
upon oath is expressly mentioned, occurs in the year 1715, ten
years after the passing of the law in question. Ibid. 76. If, then,
laws which relate to the same subject, must be taken together,
there can be no doubt from a connected view of the laws of England,
the acts of Assembly cited from the appendix of the late Province
laws, the different parts of the very act in question, and the
practice of our Courts, that, whether qualified by affirmation, or
by oath, two witnesses are necessary to establish a last Will and
Testament, and without two there can be no legal proof. The
witnesses, we admit, need not be present at the actual execution of
the instrument: but, if it is written by the Testator himself, two
witnesses must, at least, prove his hand writing; and if it be
written by another person, two witnesses must prove that it
contains his last Will and disposition.
Page 1 U.S.
278, 282
Lewis and Lawrence, for the Appellee. The Appellant in
contravention of his father's wishes and benevolence, endeavours to
set aside the Will, in order to defeat the charitable donation
which it contains: Should there be a doubt, therefore, upon the
subject, it will operate against so ungracious an attempt; but we
conceive that the strict principles of law will be a sufficient
prevention. Before the statute of Wills, 32 Hen. 8. c. I. every man
was at liberty to dispose of his personal estate; and as the
disposition was, in that respect, governed by the civil and
ecclesiastical laws, according to their institutions, two witnesses
were necessary to the probate of every Testament. But when a
statute, without saying any thing about the proof, gives a new
power to devise, unknown in the civil and ecclesiastical codes,
shall we resort to them, instead of the common law, to ascertain,
in what form, and by what number of witnesses, the exercise of that
power ought to be attested? This would surely be an absurd and
improper deviation, since the Courts of civil and ecclesiastical
law can only interpose with respect to Testaments of chattels, and
cannot take cognizance of wills for the conveyance of lands. It
may, indeed, seem strange, that two witnesses should ever have been
requisite to the former, and only one to the latter: but they are
matters not regulated by the same legislature; so that when the
Parliament, authorizing a devise, requires two witnesses to prove
it, this is not done because, in similar cases, the civil law
requires a similar attestation, but on account of the fitness and
expediency of the thing itself. It is true, however, that, as on
the other side it has not been shown that two witnesses are
necessary, neither have we been able to discover a case, in which
it is expressly adjudged, that, under the statue of 32. Hen. 8. c.
1. one witness is sussicient to establish a Will of lands: but, as
all the authorities and abridgments that have been produced, refer
exclusively to the case of a Testament of chattels, and are
uniformly silent with respect to the disposition of real estate, it
is evident that the writers regarded the separate jurisdictions, to
which these testamentary instruments respectively belonged, and
were aware of the different degrees of proof, upon which their
authenticity depended. Besides the cases that have been already
cited for the Appellant (which merely state, with some variations,
that a notary having received instructions for drawing a will, and
having accordingly drawn it, did not arrive 'till the party was
dead) there are many others of a similar description. Vin. tit.
Devise. 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 said to show,
that two witnesses were present at the execution of the will, or
heard the instructions which were given for drawing it. Nay, in an
action brought by an Heir at law against a Devisee, we find that
the instructions for drawing the will were given to an individual,
and there is not the least intimation of another witness being
present at any part of the transaction. Swinb. 56. Thus, likewise,
when a man desired another to write
Page 1 U.S.
278, 283
his Will, who accordingly took short notes at the time, went
home, and reduced them into form, but did not return 'till the
Testator was dead, this, nevertheless, was adjudged to be a good
Will within the statute. Swinb. 6. and even where the notes were
not reduced to form, 'till after the Testator's death, the Will was
established. Swinb. 51. 56. 113. Cro. E. 100. For, the principle is
explicitly laid down in Blackstone, that 'as to written Wills they
need not any witness of their publication &c. A Testament of
chattels, written in the Testator's own hand, though it has neither
his name nor seal to it, nor witnesses present at its publication,
is good: And though written in another man's hand, and never signed
by the Testator, yet, if proved to be according to his instructions
and approved by him, it hath been held a good Testament of the
personal estate.' 2 Black. Com. 501. The cases that are regulated
by the statute of frauds, 29 Car. 2. c. 3. are clearly of no
authority here; but those which have been determined under the
statute of 32 Hen.8.c. 1. are applicable to the Act of Assembly,
and ought to govern, in the exposition. By this statute, no proof
of signing and attesting is prescribed, and, therefore, before the
passing of the act in question, though two witnesses were necessary
to prove a Testament of chattels, one was sufficient, in
Pennsylvania, to establish a Will of lands. What then is the change
introduced by the Legislature? In the construction of statutes,
every part must receive effect; for, it cannot be presumed that
unnecessary words have been used; Cowp.558, and, in order to give
effect to every part, it is natural to enquire what was the subject
under consideration, and what were the objects and intentions of
those who framed the law? When, therefore, the Legislature was
considering by what proof Wills and Testaments ought to be
established, we may reasonably presume that they took into
contemplation the general principles of evidence, and finding that
presumptive proof, or in other words, such circumstantial testimony
as satisfied the mind, was sufficient in every other instance,
whether on a question of property or of life, might they not ask,
why it should be rejected here? and, if a competent answer were
wanting (as it certainly must be) would they not wisely resolve to
destroy a distinction, for which there exists no solid foundation
in reason, or the nature of things? The Legislature then, not
implicitly adhering to the civil or ecclesiastical instituitions,
and placing the Probate of Wills of lands, and of Testaments of
chattels, upon the same footing, have, in effect, declared that
those instruments shall, if possible, be authenticated by two, or
more, credible witnesses on their solemn affirmation, but, if this
cannot be obtained, then, that other legal proof, or the same
circumstantial and corroborative evidence, which decides the other
most important interests of men, shall, in this case, likewise be
received. Such, we contend, was the intention of the Legislature;
and what constitutes legal proof, it is incontroversibly the
province of the common law, and not of the civil law to judge and
determine. Let us suppose that a man directs his Will to be drawn,
that it is executed
Page 1 U.S.
278, 284
in the presence of the drawer, that the Testator informs his
friends by whom it was drawn, and that, accordingly, after his
death, it is found in the hand writing of that person: under these
circumstances, the confession of the party, corresponding with the
testimony of the Scrivener, and corroborated by the hand writing,
would certainly amount to legal proof, at common law; but, pursuant
to the adverse doctrine, the will could not be established, for
there are not two witness to the execution, nor to the instructions
for drawing it. Again; if a man says, 'my Will is in a certain
drawer,' and, after his death, an instrument, purporting to be his
Will, is found in that drawer; this, likewise, would be deemed
legal proof, and yet it wants the attestation of two witnesses. Or,
suppose it had been said, 'I am going to my Notary to direct him to
draw my Will, and I mean to give half my estate to A, and the other
half to B.' if, after his death, the notary produced an instrument
drawn in that manner, the circumstances of the case would furnish a
legal proof, but still there are not two witnesses to the Will. If
two witnesses are required in all cases, the act must be taken to
intend, witnesses present at the execution of the Will; and so the
expression or other legal proof becomes insignificant and nugatory.
Nor, consistently with the rules of grammar and construction, can
the argument be admitted, which is founded upon the religious
scruples of the Assembly that passed the act; for, if the
Legislature fought to avoid the mention of an oath, the sentence
must have been differently arranged, and would probably have run in
this way; 'Wills &c. being proved on the solemn affirmation, or
other legal proof, of two or more credible witnesses, &c.' but,
as it now stands, the Appellant's interpretation is strained and
improbable; while the latitude, for which we contend, is not
without precedent: for, by the statute of James I. the mother of a
dead child, which, if it had lived would have been a bastard, is
required to give positive proof by one witness, at least, that it
was born dead, or she shall suffer as in case of murder; yet, in
trials under this law, circumstantial evidence has always been
admitted here, as well as in England, to work an acquital. This is,
indeed, a penal statute; but there is nothing which the law regards
more favorably than a last Will, and Judges have ever been
folicitous to support the intention of the Testator. Is there not
sufficient evidence, then, that the Will in dispute, contains the
intention of the Testator? Every part of it, except that which
relates to the legacy of L.400; is directly proved by two
witnesses, the Scrivener, who drew it, and the Testator's brother,
who carried the instructions; and, even with respect to the legacy,
there is the positive testimony of one witness, corroborated with
such circumstances as force conviction on the mind such
circumstances as ought, we say, to be received, under the act of
Assembly. The Testator, avowing that he did not mean to leave all
his estate 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 few days before he expired, he
requested one of the witnesses to be a
Page 1 U.S.
278, 285
Trustee for that use. When, therefore, we find the same
intention expressed in the instrument produced, and the Scrivener
deposes that it is expressed conformably to the instructions he
received, there cannot be a doubt of our being in full possession
of the last Will and Mind of the Testator. The Will is, therefore,
clearly established by legal proof, within the letter and spirit of
the act; which, by thus using a comprehensive, though plain and
satisfactory, mode of expression, intended to obviate the many
mischiefs that had arisen, from the strict rules of proof required
by the civil and ecclesiatical law. Wilcocks, in reply. It is
conceded, that, according to the law in England, a Testament of
chattels must be proved by two witnesses, but it is argued by the
adverse counsel, that under the statute of 32 Hen.8.c.1. a Will of
lands is sufficiently proved by one witness. In this we cannot
agree; for, none of the cases, cited on the part of the Appellee,
relate to the solemnities of making a Will, or the degree of proof
that is required: the only point agitated or determined in any of
them, is, whether the instrument in question be a good Will in
writing, or not? and though there is no express adjudication upon
the subject, we find it said that two witnesses are necessary to a
Will, saving that, in case of land, the solemnity of writing is
also necessary. Swinb. 6. which is a strong implication in favor of
the Appellant's doctrine. But the present controversy must be
decided, afterall, by the act of Assembly, which was made with a
full knowledge of the ideas and determinations in England, relative
to the probate of testamentary writings; and there appears from the
several prior acts of the Legislature of Pennsylvania, a fixed
intention to adopt the practice of that country. If indeed, by the
words, or other legal proof, less than two witnesses were meant,
this absurdity will be obvious, that in the first part of the
sentence, we are called upon to prove the Will by two, or more,
credible witnesses, upon their solemn affirmation; and that in the
close of it, we are allowed to make the proof by one, or less than
one, witness, that is by circumstances which satisfy the mind; so
that the words 'two or more witnesses' are by such construction
satisfied by a proof of 'two or less than two witnesses.' Thus,
likewise, the testimony of two witnesses, or of less than two,
under any circumstances, is made tantamount to the testimony of two
or more witnesses, upon their solemn affirmation; a concession
which, it is not probable, a Legislature, composed of Quakers,
would have been easily induced to make. On the contrary, the design
of this clause seems to have been, to prevent any doubt of a man's
right to deliver his testimony, conformably to the dictates of his
conscienscious scruples; and, having provided that the proof might
be made by two, or more, credible witnesses, upon their solemn
affirmation, it was necessary to proceed to admit other legal
proof; for, if the Legislature had stopped there, an affirmation
would be the only form of attestation by which a Will could be
established; and as the law allowed no person to affirm, who was
not conscientiously scrupulous
Page 1 U.S.
278, 286
of taking an oath, it follows, generally, that none but a Quaker
could be a witness to a Will. Certain it is, therefore, that other
legal proof, is placed in opposition to solemn affirmation, and not
to the number of witnesses; and the clause, fairly construed,
amounts to this, that 'Wills &c. being proved by two, or more,
credible witnesses, upon their solemn affirmation, or by two or
more credible witnesses, under any other legal qualification, shall
be good and available in law;' the same number of witnesses being
necessary to the probate, whatever may be the form of attestation.
This construction is perfectly conformable to the caution and to
the liberal principles of the Legislature of that day. They first
take care to establish a mode of proof according to their own
religious persuasion, and then, under the general expressions
'other legal proof' would admit all modes of attestation, which
either the laws of that day, or any future time, should recognize.
Without such precautions, how precarious would be the situation of
property! In the last moments of life, when the body is depressed
with sickness, the understanding imparied by age, and the mind
agitated with doubt and apprehension, we may easily conceive the
successful operations of artifice and fraud. The government of
every wife and enlightened nation has endeavoured, therefore, to
protect the imbecility and weakness of that state, from the force
or cunning of interested men: nor is it just to the reputation of
this country, to suppose, that her Legislature alone, has left the
proof of the last, and most solemn, act of her citizens, to mere
circumstances and conjecture. The Court took time to consider of
their Judgment, which was the next day delivered by the Chief
Justice.
M'Kean, Chief Justice. This cause comes before us upon an appeal
from the Register of Wills, and two Justices of the Court of Common
Pleas of the county of Montgomery; and, it is agreed, that there is
but one question for the determination of the Court; to wit,
whether a Will not written by the Testator, or subscribed by him,
but put into writing by his direction, and proved to be so only by
the person who drew it, ought to be established as a good and
perfect Will and Testament? The disposition of property by Will,
was certainly the first mode of conveyance used among men; and some
authors, in tracing its antiquity, have informed us, that Noah made
a Will, devising the whole world to his sons, according to their
respective proportions. The conveniency of the thing having
rendered it universal, custom, at lenght, became a law for its
support; and different solemnities, or forms, were prescribed by
different Legislatures, in order to fix the authenticity of a
testamentary writing. Thus, by the Roman law, it was originally
requisite that a Will should be in writing, subscribed by the
Testator, if he could write, before seven witnesses,
Page 1 U.S.
278, 287
and, if, he could not write, then published by him in the
presence of eight witnesses; but this number was properly reduced
to two in the time of Justinian. By the civil and ecclesiastical
laws, as they prevail in England, the ablest writers concur in
saying, that two witnesses are required, and that two are
sufficient to prove a Will. The statute of 32. H. 8. c. I. (which
is merely explained by the 34. and 35. of the same reign) enables a
man by his Will in writing to dispose of all his soccage lands, and
two thirds of his lands held in capite; which, by the subsequent
operation of the 12. Car. 2. c. 24. extends to all his real estate.
It is incontrovertibly settled, however, that neither the statute
of Henry 8. nor the statutes by which it is explained, made any
alteration in respect to Testaments of goods and chattels; and
therefore, they are still regulated, as they always were, by the
civil and ecclesiastical law, which, as it has been already
remarked, requires the attestation of two witnesses. As this, then,
was the established 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
Legislature of Pennsylvania, we must now enquire, whether any act
of our Legislature has substituted 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 estate, and Testaments of
personal property, upon the same footing; and that any proof which
would be sufficient to convince a Jury of a fact in issue, is, by
that law, made competent to the probate of a last Will and
Testament. It has been argued, likewise, by the same counsel, that,
even in England, from the passing of the statute of 32 Hen. 8. c.
1. 'Till the passing of the statute of frauds, 29. Car. 2. c. 3.
the positive testimony of witnesses was not required, but that any
common law evidence, founded upon circumstances, was sufficient to
prove a Will of lands. On this point, there is, perhaps, no express
adjudication to be met with in our books; yet there are cases in
which the necessity of two witnesses to a Will of lands, seems
strongly to be implied. God. Orph. Leg. 15. Dy. 72. Plow. 345. But
the cause before the Court must finally depend upon a proper
construction of the act of Assembly; which has declared, that
'Wills &c. being proved by two or more credible witnesses, on
their solemn affirmation, or by other legal proof, shall be good
and available in law;' and as all testamentary writings, whether
for the disposal of real, or personal, estate, are subject, in this
respect, to one rule, the whole dispute rests upon the words, or
other legal proof. In the construction of statutes, the same
principle should be observed, which prevails with respect to Wills;
and the intent and meaning of the Legislature in the former, ought
to be as carefully sought after, and as faithfully pursued, as the
intent and meaning of the Testator in the latter. What then was the
intention of the Assembly in passing this act? The Appellees
alledge, that it was to admit common law evidence in the case of
Wills; and that other
Page 1 U.S.
278, 288
legal proof, is an alternative opposed to the number of
witnesses. But to this, it has been answered, that less proof than
two witnesses, could not, consistently with the reason and nature
of the subject, be intended; and that other legal proof, is put in
opposition to solemn affirmation, in order to admit the attestation
of an oath, whether administered upon the Gospels to a Christian,
or upon the Pentateuch to a Jew; whether with the solemnity of an
uplifted hand, according to some sectaries; or with the ceremonial
of the hand placed beneath the thigh, as it is practiced by the
Gentoo nations.
This appears, upon the whole, to be the genuine exposition of
the act; and the adverse doctrine is pregnant with so much
absurdity and inconveniency, that it ought not to be imputed to the
Legislature, nor ought it to receive the sanction of the Court.
Besides, we find, that this very act requires the testimony of two,
or more, witnesses to the probate of a nuncupative Will, and
likewise, to the revocation of a Will; and every principle which
could make it necessary in those instances, must, a fortiori,
operate in the case before us: For, it could not be designed, that
greater solemnity should be observed in a verbal Testament, or in
repealing, than in making, a last Will and Testament; an act of the
most serious and important nature, not only as it affects the
Testator, but as it affects the peace and welfare of posterity.
In short, from the uniform tenor of the Acts of Assembly, from
the practice of the Courts, and from the other analogous sections
of the same law, it is evident that the Legislature meant to
require two witnesses, in proof of every testamentary writing,
whether for the disposition of real, or personal estate. This
opinion, in which the Court unanimously 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 opposite construction, prove the validity of the
Will which he had written. By such means the very purpose of Wills
might be defeated, and the fullest scope given to foul and
fraudulent impositions.
BRYAN, Justice.
The witness, on the present occasion, is indubitably a man of
fair and upright character; and, therefore, it is the more
particularly to be observed, that the opinion of the Court is
founded upon the indispensible necessity of having two witnesses to
the probate of every Will.
BY THE COURT: Let the sentence and proceedings of the Register's
Court be reversed.
Footnotes
[
Footnote *] 2nd Vol. Ap. page 109.
This Act of Assembly requires two or more subsiding witnesses.
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