Page:United States Reports, Volume 1.djvu/297

286 

1788.

of taking an oath, it follows, generally, that none but a ₢uaker could be a witnefs to a Will

Certain it is, therefore, that other legal prooƒ, is placed in oppofition to ʃolemn aƒƒirmation,  and not to the number oƒ witneʃʃes ;  and the claufe, fairly conftrued, amounts to this, that ‘‘ Wills &c. being proved by two, or more, credible witneffes, under any other legal qualiƒication, fhall be good an available in law ; ’’ –  the fame number of witneffes being neceffary to the probate, whatever may be the form of atteftation.

This conftruction is perfectly conformable to the caution and to the liberal principles of the Legiflature of that day. They firft take care to eftablifh a mode of proof according to their own religious perfuafion, and then, under the general expreffions–‘‘other legal proof’’– would admit all modes of atteftation, which other the law of that day, or any future time, fhould recognizes.

Without fuch precautions, how precarious would be the fituation of property! In the laft moments of life, when the body is depreffed with ficknefs, the underftanding impaired by age, and the mind agigtated with doubt and apprehenfion, we may eafily conceive the fuccefutal operations of artifice and fraud. The government of every wife and enlightened nation has endeavoured, therefore, to protect the imbecility and weaknefs of that ftate, from the force or cunning of interefted men : nor is it juft to the reputation of this country, to fuppofe, that her Legiflature alone, has left the proof of the laft, and moft folemn, act of the citizens, to more circumftances and conjecture.

The Court took time to confider of their Judgment, which was the next day delivered by the

M‘KEAN, Chieƒ Juʃtice.– This caufe comes before us upon an appeal from the Regifter of Wills and two Juftices of the Court oƒ Common Pleas of the county of Montgomery ; and, it is agreed, that there is but one queftion for the determination of the Court ; to wit, whether a Will not written by the Teftator, or fubfcribed by him, but put into writing by  directions, and proved to be fo only by the perfon who drew it, ought to be eftablifhed as a good and perfect Will and Teftament?

The difpofition of paper by Will, was certainly the firft made of conveyance ufed among ; and fome authors, in tracing its antiquity, have informed us, that Noah  made a Will, devifing the whole world to his fons, according to their refpective proportions. The conveniency of the thing rendered it univerfal, cuftom, at length, became a law for its fupport  and different folemnities,or forms, were prefcribed by different Legiflatures, in order to fit the authenticity of a teftamentary writing. Thus, by the Roman law, it was originally requifite that a Will fhould be in writing, fubfcribed by the Teftator, if he could write before feven witneffes, and