Page:United States Reports, Volume 1.djvu/292

Rh 

1788.

Legiflature, at that day, carried the matter fo far as to require the teftimony of two witneffess in all cafes. ''Prov. Laws. in app. p.'' 3. c. 36. It is not, therefore, unreafonable to fuppofe, that it was intended, by the act of 1705, to relax the rules of proof on a fubject of fo much folemnity and importance, as a laft Will and Teftament?– and, more efpecially, when by the fame law Sect. 6. it is declared, that no Will in writing, concerning any goods and chattels, or perfonal eftate, fhall be repealed by word of mouth only, nor fhall any nuncupative Will be eftablifhed, but upon the teftimony of two, or more, witneffes ? Sect. 3.

This act then, muft have proceeded upon the well known, principles and decifions refpecting probabtes ; and the conftrution ought to be fuch, that no word fhould be rendered void, fuperfluous, or infignifcant. Hence, by the words, or other legal prooƒ, the proof meant by the Legiflature, muft be that, which the pre-exifting laws and cuftoms of England,  had made neceffary to a laft Will and Teftament, and not merely that, which is fufficient to convict a man of an offence, or to charge him with a debt :for, if this were not the meaning, itwould be fuperfluous to fay, that the probabte fhall be by two, or more, credible witneƒƒes, upon their ʃolemn aƒƒirmation OR  by other legal prooƒ, fince the latter fentence would naturally comprehend and fuperceded the former. Such, indeed, has been the interpretation of the Regiƒter's Court of Pennʃylvania,  in 1773.

But, when we confider the religious delicacy of thofe perfons, who chiefly compofed the Legiflative body when the act was paffed, may we not prefume that this mode of expreffion has been ufed, in order, on the one hand, to affert the right of giving teftimony upon ʃolemn aƒƒirmation ; and, on the other, to avoid the direct mention of teftimony upon oath ? This conjecture is, in fome degree, fupported by the circuitous manner in which many other acts of Affemnly prefcribe the forms of proof ; ''Prov. Law.'' 2. 3. 4. 5.5.6. 20.24.25.37.37.42.45.45. for, the firft time that an atteftation upon oath is exprefsly mentioned, occurs in the year 1715, ten years after the paffing of the law in queftion. Ibid. 76.

If, then, laws which relate to the fame fubject, muft be taken together, there can be no doubt from a connected view of the laws of England, the acts of Affembly cited from the appendix of the late Province laws, the different parts of the very act in queftion, and the practice of our Courts, that, whether qualified by aƒƒirmation, or by oath, two witneffes areneceffary to eftablifh a laft Will and Teftament, and without two  there can be no legal prooƒ.  The witneffes, was admit, need not be prefent at the acutal execution of the inftrument: but, if it is written by the Teftator himfelf, two witneffes muft, at leaft, prove his hand writing ; and, if it be written by another perfon, two witneffes muft prove that it contains his laft Will and difpofition. Rh