Page:United States Reports, Volume 1.djvu/290

Rh 

1788.

his brother to mention to John Evans : But John Evans was the only witneʃs who proved any inftructions to have been given in refpect to the legacy of Ł.400.– It appeared, likewife, that the fame fcriverner had drawn another Will for the deceafed in the year 1779, which was left in fimilar circumftances, without the fubfcription of the teftator, or any other atteftation than that of the drawer ; but this circumftance was made no ufe of in the argument.

Wilcocks and W. M. Smith for the Appellants.–We contend 1ft, That there is only one witneʃs to prove the inftrument in queftion ; and, 2dly, That two witneƒƒes are indifpenfibly neceffary to the legal eftablifhment of a laft Will and Teftament.

I. The ƒirʃt point, arifing from the facts, muft be determined by the depofitions ; and, as no regard can be paid to a recital of the loofe expreffions which were ufed by the fuppofed teftator, antecedent to the inftructions for drawing his will, it is clear, that the only evidence to fupport the legacy in favor of the fchool, muft be founded upon the depofition of John Evans, to whom thofe inftructions were given.

II. We fhall proceed them, to confider the ʃecond point, which depends upon the conftruction of the Act of Affembly, paffed in the year 1705, ‘‘ concerning the probates of written and noncupative Wills, and for confirming devifes of lands.’’ It is there faid, that

‘‘ all wills in writing, wherein, or whereby any lands, tenements,

‘‘ or hereditaments, within this province, have been, are or fhall be

‘‘ devifed (being proved by two or more credible witneƒƒes, upon their ʃo

‘‘ lemn aƒƒirmation, OR BY OTHER LEGAL PROOF IN THIS PROV

" INCE &C.) fhall be good and available in law, for the granting,

‘‘ conveying, and affuring of the lands, or hereditaments, thereby be-

"qeathed.’’ ‘‘ 1 State Laws. 30.  The queftion, therefore, refts upon the meaning of the words, or other legal prooƒ in this province;  and, in order to afcertain that, it may be proper to take a fhort, retrofpective, view of the general doctrine, refpecting the legal atteftation of Wills and Teftaments.  As the probate of Wills was not a matter originally of common law jurifdiction, the decifions have neceffarily been drawn from the civil law, the ecclefiaftical law, and  the law of nations, engrafted upon the general cuftoms of the realm of England. By the civil law, indeed, feven witneffes were required ; but his excefs being reformed, firft by the ecclefiaftical law, which required three witneffes in fome cafes, and only two in others, and then by the general cuftoms of the kingdom, it is fettled in the moft authorized books to be fufficient, that the will and mind of the teftator fhould appear by two competent and difinterefted witneffes. Swinb. 5.6.45.46. 3. Salk. 396. For, the general cuftoms of the kingdom are not further controuled, than by the jus gentium, which is likewife fatisfied with the atteftation of two witneffes. Swinb. 47. ''Goil.Orph. Leg.'' 3.8.10. and where, indeed, the difpofition is for pious uʃer, the cannon law, in this refpect, correfponds with the jus gentium,  although too ʃecular purpoʃes,  it ftill requires two