Page:United States Reports, Volume 1.djvu/298

Rh 

1788.

and, if, he could not write, then publifhed by him in the prefence of eight witneffes ; but this number was properly reduced to two in the time of Juʃtinian. By the civil and ecclefiaftical laws, as they prevail in England, the ableft writers concur in faying, that two witneffes are required, and that two are fufficient to prove a Will. The ftatute of 32. H. 8. c. 1. (which is merely explained by the 34. and 35. of the fame reign)  enables a  man by his Will in writing to difpofe of all his foccage lands, and two thirds of his lands held in capite ; which, by the fubfequent operation of the 12. Car. 2. c. 24. extends to all his real eftate. It is incontrovertibly fettled, however, that neither the ftatute of Henry 8. nor the ftatutes by which it is explained, made any alteration in refpect to Teftaments of goods and chattels ; and therefore, they are ftill regulated, as they always were, by the civil and ecclefiaftical law, which, as it has been already remarked, requires the atteftation of two witneffes.

As this, then,was the eftablifhed rule in England, and as by the Charter from Charles the Second to William Penn  the laws of England, relating to property, were to be the laws of the Province, until altered by the Legiflature of Pennʃylvania,  we muft now enquire, whether any act of our Legiflature has fubftitued another mode of proof?

It is contended, on the part of the Appellees, that the law enacted in the year 1705, has placed Wills of real eftate, and Teftaments of perfonal property, upon the fame footing ; and that any proof which would be fufficient to convince a Jury of a fact in iffue, is, by that law, made competent to the probate of a laft Will and Teftament. It has been argued, likewife, by the fame counfel, that, even in England, from the paffing  of the ftatute of 32 Hen. 8. c. 1. ‘till the paffing of the ftatute of frauds, 29. Car. 2. c. 3. the pofitive teftimony of witneffes was not required, but that any common law evidence, founded upon circumftances, was fufficient to prove a Will of lands. On this point, there is, perhaps, no expreʃs adjudication to be met with in out books ; yet there are cafes in which the neceffity of two witneffes to a Will of lands, femms ftrongly to be implied. ''God. Orph. Leg.'' 15. Dy. 72. Plow. 345. But the caufe before the Court muft finally depend upon a proper conftruction of the act of Affembly ; which has declared, that ‘‘ Wills &c. being proved ‘‘ by two or more credible witneffes, on their folemn affirmation,  ‘‘ or by other legal proof, fhall be good and available in law ; ’’  and as all teftamnetary writings, whether for the difpofal of real, or perfonal, eftate, are fubject, its this refpect, to one rule, the whole difpute refts upon the words, or other legal prooƒ.

In the conftruction of ftatute, the fame principle fhould be obferved, which prevails with refpect to Wills ; and the intent and meaning of the Legiflature in the former, ought to be as carefully fought after, and as faithfully purfued, as the intent and meaning of the Teftator in the latter. What then was the intention of the Affembly in the paffing this act? The Appellees alledge, that it was to admit common law evidence in the cafe of Wills ; and that other legal