Page:United States Reports, Volume 1.djvu/294

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1788.

his Will, who accordingly took fhort notes at the time, went home, and reduced them into form, but did not return ‘till the Teftator was dead, this, neverthelefs, was adjudged to be a good Will within the ftatute. Swinb. 6. and even where the notes were not reduced to from, ‘till after the Teftator's death, the Will was eftablifhed. Swimb. 51. 56. 113. ''Cro. E.'' 100. For, the principle is explicitly laid down in Blackʃtone, that ‘‘ as to written Wills they need not any witnefs of their publication&c. A Teftament of chattels, written in the Teftator's own hand, though it has neither his name nor feal to it, nor witneffes prefent at its publication, is good : And though written in another man's hand, and never figned by the Teftator, yet, if proved to be according to his inftructions and approved by him, it hath been held a good Teftament of the perfonal eftate.’’ 2 ''Black. Com.'' 501.

The cafes that are regulated by the ftatute of frauds, 29 Car. 2. 3. are clearly of no authority here ; but thofe which have been determined under the ftatute of 32 Hen. 8. c. 2. are applicable to the Act of Affembly, and ought to govern in the expofition. By this ftatute, no proof of figning and attefting is prefcribed, and, therefore, before the paffing of the act in queftion, though two witneffes were neceffary to prove a Teftament of chattels, one was fufficient, in Pennʃylvania, to eftablifh a Will of lands. What then is the charge introduced by the Legiflature? In the conftruction of ftatutes, every part muft receive effect ; for, it cannot be prefumed that unneceffary words have been ufed ; Cowp. 558, and, in order to give effect to every part, it is natural to enquire what was the fubject under confideration, and what were the objects and intentions of thofe who framed the law? When, therefore, the Legiflature was confidering by what proof Wills and Teftaments ought to be eftablifhed, we may reafonably prefume that they took into contemplation the general principles of evidence, and finding that prefumptive proof, or, in other words, fuch circumftantial teftimony as fatisfied the mind, was fufficient in every other inftance, whether on a queftion of property or a life, might they not afk, why it fhould be rejected here? and, if a competent anfwer were wanting (as it certainly muft be) would they not wifely refolve to deftroy a diftinction, for which there exifts no folid foundation in reafon, or the nature of things? The Legiflature then, not implicitly adhering to the civil or ecclefiaftical inftitutions, and placing the Probate of Wills of lands, and of Teftaments of chattels, upon the fame looting, have, in effect, declared that thofe inftruments fhall, if poffible, be authenticated by two, or, more, credible witneʃʃes on their ʃolemn aƒƒirmation ; but, if this cannot be obtained, then, that other legal prooƒ,  or the fame circumftantial and corroborative evidence, which decides the other moft important interefts of men, fhall, in this cafe, likewife be received.

Such, we contend, was the intention of the Legiflature ; and what conftitutes legal prooƒ, it is incontrovertibly the province of the common law, and not of the civil law, to judge and determine. Let us fuppofe that a man directs his Will to be drawn, that it is Rh