Page:United States Reports, Volume 1.djvu/295

284 

1788.

in the prefence of the drawer, that the Teftator informs his friends by whom it was drawn, and that, accordingly, after his death, it is found in the hand writing of that perfon:– under thefe circumftances, the confeffion of the party, correfponding with the teftimony of the Scrivener, and corroborated by the hand writing, would certainly amount to legal prooƒ, at common law ; but, purfuant to the adverfe doctrine, the will could not be eftablifhed, for there are not two witneffes to the execution, nor to the inftructions for drawing it. Again ; if a rain fays, ‘‘ my Will is in a certain drawes,’’ and, after his death, an inftrument, purporting to be his Will, is found in that drawer ; this, lifewife, would be deemed legal prooƒ,  and yet it wants the attention of two witneʃʃes.  Or, fuppofe it had been faid, ‘‘ I am going to my Notary  direct him to draw my Will, and I mean to give half my eftate to A, and the other half to B.’’  if, after his death, the notary produced an inftrument drawn in that manner, the circumftances of the cafe would furnifh a legal prooƒ,  but ftill there are not two witneʃʃes to the Will.

If two witneffes are required in all cafes, the act muft be taken to intend, witneffes prefent at the execution of the Will ; and fo the expreffion or other legal prooƒ becomes infignificant and nugatory. Nor, confiftently with the rules of grammar and conftruction, can the argument be admitted, which is founded upon the religious Scruples of the Affembly that paffed the act ; for, if the Legiflature fought to avoid the mention of an oath, the fentence muft have been differently arranged, and would probably have run in this way ; ‘‘Wills&c. being proved on the ʃolemn aƒƒirmation, or other legal prooƒ, oƒ two or more credible witneʃʃes,&c. ’’ but, as it now ftands, the Appellant‘s interpretation is trained and improbable ; while the Latitude, for which we contend, is not without precedent: for, by the ftatute of James I.  the mother of a dead child, which, if it had lived would have been a baftard, is required to give pofitive proof by one witneʃs, at leaft, that it was born dead, or fhall fuffer as in cafe of murder ;  yet, in trials under this law, circumftantial evidence has always been admitted here, as well as in England, to work an acquital. This is, indeed a penal ftatute ; but there is nothing which the law regards more favorably than a laft Will, and Judges have ever been folicitous to fupprt the intention of the Teftator.

Is there not fufficient evidence, then, that the Will in difpute contains the intention of the Teftator? Every part of it, except that which relates to the legacy of Ł.400 ; is directly proved by two witneffes, the Scrivener, who drew it, and the Teftator's brother, who carried the inftructions, and, even with refpect to the legacy, there is the pofitive teftimony of one witnefs, corroborated with fuch circumftances as force conviction on the mind—fuch circumftances as ought, we fay, to be received, under the act of Affembly. The Teftator, avowing that he did not mean to leave all his eftate 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  he requefted one of the witneffes to be a