Page:United States Reports, Volume 1.djvu/291

280 

1788.

two witneffes, one of whom muft be the minifter. ''God. Orph.Leg.'' 8.10. In the cafe of Codicils, the civil law required only five witneffes, but the law of England requires the fame proof, as in the cafe of Teftaments, that is two witneffes. id. 20. Two witneffes, therefore, are ʃuʃʃicient, and regularly two witneffes are alfo neceʃʃary to the legal proof of a laft Will and Teftament. Swinb. 343. 1 ''Equity. Abr.'' 5. ''Bac. Tit. Teʃt.'' and it may be vain to have no more than one. Swinb. 65. Where children have been confidered as incompetent witneffes to their father's Will, a child, being the third witnefs, was adjudged as none, and the will fet afide. 1 P. Wms. 10. 267. S.P. and the neceffity of two witneffes to a Will, is an idea as ancient as the time of ''Glanvil. Glan. b.'' 7. c. 5. Nor does a prohibition lie to the ecclefiaftical Court, for refufing, by one witnefs, to eftablifh a teftamentary writing. ''God. Orph. Leg.'' 66. 2 ''Burn. Ecc. Law.'' 243. 2 Salk. 547. L. Raym. 220. It is certain, that the ftatute of frauds has not made any alteration in refpect to written Teftaments of goods and chattels ; and one witnefs, by the civil law, being as no witnefs at all, the proof of fuch a Teftament can only be made by two fufficient witneffes. 2 ''Burn. Eccl. Law.'' 524.

It is true, that we have produced no adjudged cafe, under the 32 Hen. 8. c. I. fhewing that two witneffes are  neceffary to eftablifh fubfequent to the ftatute, which, in this point, make no difcrimination beween Wills of lands, and Teftaments of chattels, that it may be fairly infered that the rule of proof, founded upon jus gentium, and the general cuftoms of England,  is alike applicable to evey fpecies of teftamentary writing. For the caufe of the appellant, however, it is fufficient, that no doubt can remain of its ftrict and invariable application, in the cafe of Teftaments for the difpofition of perfonal property ; and, being thus incontrovertibly eftablifhed in that country, from which we have, in general, copied the principles and practice of jurifprudence, it will appear by various acts of the Legiflture, antecedent to the paffing of the law in queftion, and even by the original ftipulations in England, that the neceffity of two witneffes to the legal probate of a laft Will and Teftament, has been exprefsly recognized and adopted in Pennʃylvania. Thus, among the laws agreed upon in England, it is provided, that ‘‘ all

‘‘Wills and Writings, attefted by two witneffes, fhall be of the fame

‘‘force as to lands, as other conveyances &c.’’ ''Prov.law. in App. p.'' 4. art. 15. From which it feems to have been the intention of the Proprietary and firft emigrants, to obviate every doubt, and, unequivocally, to place the proof of Teftament of chattels ; and this ftipulation was formerly enacted into a law, foon after the meeting of the General Affembly of the Province. Ibid p. 7. c. 45. The law enabling Foreigners to devife lands, likewife makes two witneffes neceffary to the Will. ''Prov. Laws. vol.'' 2. p. 109. old Edit. Nay, the Legiflature, 2d Vol. Ap. page 109. –This Act of Affembly requires two or more fubscribing witneffes.