Page:United States Reports, Volume 1.djvu/296

Rh 

1788.

Truftee for that rule. When, therefore, we find the fame intention expreffed in the inftrument produced, and the Scrivener depofes that it is expreffed comformably to the inftructions he received, there cannot be a doubt of out being in full poffeffion of the laft Will and Mind of the Teftator. The Will is, therefore, clearly eftablifhed by legal prooƒ within the letter and fpirit of the act ; which, by thus iffuing a comprehenfive, though plain and fatisfactory, mode of expreffion, intended to obviate the many mifchiefs that had arifen, from the ftrict rules of proof required by the civil and ecclefiaftical law.

Wilcocks, in reply.– It is conceded, that, according to the law in England. 2 Teftament of chattels muft be proved by two witneffes ; but it is argued by the adverfe counfel, that under the ftatute of 32 Hen. 8. c. 1.a. Will of lands is fufficiently proved by one witnefs of the Appellee, relate to the folemnities of making a Will, or the degree of proof that is required :  the only point agitated or determined in any them, is, whether the inftrument in queftion be a good Will in writing, or not ? and though there is no exprefs adjudication upon the fubject, we find it faid that two witneffes and neceffary to a Will, faving that, in caʃe oƒ land, the folemnity of writing is alfo neceffary. Swinb. 6 which is a ftrong implication in favour of the Appellant's doctrine.

But the prefent controverfy muft be decided, after all, by the act of Affembly, which was made with a full knowledge of the ideas and determination in England, relative to the probate of teftamentary writings ; and there appears from the feveral prior acts of the Legiflture of Pennʃylvania, a fixed intention to adopt the practice of that country. If, indeed, by the words, or other legal prooƒ, lefs than two witneffes were meant, this abfurdity will be obvious, that in the firʃt part of the fentence, we are called upon to prove the Will by two, or more,  credible witneffes, upontheir ʃolemn aƒƒirmation ; and that in the cloʃe of it, we are allowed to make the proof by the mind ; fo that the words–“ two or lefs than two witneffes.”  Thus, likewife, the teftimony of two witneffes, or of leʃs than two, under any circumʃtances, is made tantamount to the teftimony of two or more witneʃʃes, upon their ʃolemn aƒƒirmation; –a conceffion which, it is not probable, a Legiflature, compofed of ₢akers, would have been eafily induced to make. On the contrary, the defign of this claufe feems to have been, to prevent any doubt of a man's right to deliver his teftimony, conformably to the dictates of his confcienfcious fcruples ; and, having provided that the proof might be made by two, or more, credible witneffes, upon their ʃolemn aƒƒirmations, it was neceffary to proceed to admit other legal prooƒ ;  for, if the Legiflture had ftopped there, an aƒƒirmation would be the only ƒorm oƒ atteʃtation by which a Will could be eftablifhed ; and as the law allowed no perfon to affirm, who was not confcientioufly fcrupulous of