1788.
Lewis and Lawrence, for the Appellee.– The Appellant in contravention of his father's wifhes and benevolence, endeavours to fet afide the Will, in order to defeat the charitable donation which it contains : Should there be a doubt, therefore, upon the fubject, it will operate againft fo ungracious an attempt ; but we conceive that the ftrict principles of law will be a fufficient prevention. Before the ftatute of Wills, 32 Hon. 8. c. 1. every man was at liberty to difpofe of his perfonal eftate ; and as the difpofition was, in that refpect , governed by the civil and ecclefiaftical laws, according to their inftitutions, two witneffes were neceffary to the probate of every Teftament.
But when a ftatute, without faying any thing about the proof, gives a new power so devife, unknown in the civil and ecclefiaftical codes, fhall we refort to them, inftead of the common law, to afcertain, in what form, and by what number of witneffes, the exercife of that power ought to be attefted ? This would furely be an abfurd and improper deviation, fince the Courts of civil and ecclefiaftical law can only interpofe with refpect to Teftaments of chattels, and cannot take cognizance of wills for the conveyance of lands. It may, indeed, feem ftrange, that two witneffes fhould ever have been requifite to the former, and only one to the latter ; but they are matters not regulated by the fame legiflature ; fo that when the Parliament, authorizing a devife, requires two witneffes to prove it, this is not done becaufe, in fimilar cafes, the civil law requires a fimilar atteftation, but on account of the fitnefs and expediency of the thing itfelf.
It is true, however, that, as on the other fide it has not been fhewn that two witneffes are neceʃʃary, neither have we been able to difcover a cafe, in which it is exprefsly adjudged, that, under the ftatute of 32. Hen. 8. c. 1 one witnefs is ʃuʃʃicient to eftablifh a Will of lands ; but, as all the authorities and abridgments that have been produced, refer exclufively to the cafe of a Teftament of chattels, and are uniformly filent with refpect to the difpofition of real eftate, it is evident that the writers regarded the feparate jurifdictions, to which thefe teftamentary inftruments refpectively belonged, and were aware of the different degrees of proof, upon which their authenticity depended. Befides the cafes that have been already cited for the applicants (which merely ftate with fome variations, that a notary having received inftructions for drawing a will, and having accordingly drawn it, did not arrive ‘till the party was dead) there are many others of a fimilar defcription. Vin. tit. Deviʃe. pa. 117. pl. 2.4.5.6.14. 15. pa. 123. pl. 9. pa. 122. pl. 3. But, in this long catalogue, not a word is faid to fhew, that two witneffes were prefent at the execution of the will, or heard the inftructions which were given for drawing it. Nay, in an action brought by an Heir at law againft a Devifee, we find that the inftructions for drawing the will were given to an individual, and there is not the leaft information of another witnefs being prefent at any part of the tranfaction. Swinb. 56 Thus, likewife, when a man defire another to write
