LEWIS v. MARIS, 1 U.S. 278 (1788)
Syllabus
U.S. Supreme Court
LEWIS v. MARIS, 1 U.S. 278 (1788)1 U.S. 278 (Dall.)
Lewis, Appellant
v.
Maris, Appellee
High Court of Errors and Appeals of Pennsylvania
April Sessions, 1788
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
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 [1
U.S. 278, 280]
Opinions
v.
Maris, Appellee High Court of Errors and Appeals of Pennsylvania April Sessions, 1788 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.
U.S. Supreme Court
LEWIS v. MARIS, 1 U.S. 278 (1788) 1 U.S. 278 (Dall.) Lewis, Appellantv.
Maris, Appellee High Court of Errors and Appeals of Pennsylvania April Sessions, 1788 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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