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

1788.
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of taking an oath, it follows, generally, that none but a Quaker could be a witness to a Will.

Certain it is, therefore, that other legal proof, is placed in opposition to solemn affirmation, and not to the number of witnesses; and the clause, fairly construed, amounts to this, that "Wills &c. being proved by two, or more, credible witnesses, upon their solemn affirmation, or by two or more credible witnesses, under any other legal qualification, shall be good an available in law;"—the same number of witnesses being necessary to the probate, whatever may be the form of attestation.

This construction is perfectly conformable to the caution and to the liberal principles of the Legislature of that day. They first take care to establish a mode of proof according to their own religious persuasion, and then, under the general expressions–"other legal proof"–would admit all modes of attestation, which other the law of that day, or any future time, should recognizes.

Without such precautions, how precarious would be the situation of property! In the last moments of life, when the body is depressed with sickness, the understanding impaired by age, and the mind agitated with doubt and apprehension, we may easily conceive the successful operations of artifice and fraud. The government of every wife and enlightened nation has endeavoured, therefore, to protect the imbecility and weakness of that state, from the force or cunning of interested men: nor is it just to the reputation of this country, to suppose, that her Legislature alone, has left the proof of the last, and most solemn, act of the citizens, to more circumstances and conjecture.

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

M'Kean, Chief Justice.–This cause comes before us upon an appeal from the Register of Wills and two Justices of the Court of Common Pleas of the county of Montgomery; and, it is agreed, that there is but one question for the determination of the Court; to wit, whether a Will not written by the Testator, or subscribed by him, but put into writing by his direction, and proved to be so only by the person who drew it, ought to be established as a good and perfect Will and Testament?

The disposition of paper by Will, was certainly the first made of conveyance used among men; and some authors, in tracing its antiquity, have informed us, that Noah made a Will, devising the whole world to his fons, according to their respective proportions. The conveniency of the thing having rendered it universal, custom, at length, became a law for its support and different solemnities forms, were prescribed by different Legislatures, in order to fit the authenticity of a testamentary writing. Thus, by the Roman law, it was originally requisite that a Will should be in writing, subscribed by the Testator, if he could write before seven witnesses,

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