1 U.S. 278 (1788)

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U.S. Supreme Court

LEWIS v. MARIS, 1 U.S. 278 (1788)

1 U.S. 278 (Dall.)

Lewis, Appellant
Maris, Appellee

High Court of Errors and Appeals of Pennsylvania

April Sessions, 1788

This was an appeal from the Decree of the Register of Wills, and two Justices of the Court of Common Pleas of the county of Montgomery, who admitted an instrument bearing date the 25th of the Tenth Month, 1786, purporting to be the last will and Testamont of one Jephtha Lewis, the father of the Appellant, to be proved as a good Will and Testament in writing, although it had neither been written, nor subscribed, by the supposed testator, upon the deposition of John Evans, a scrivener, that it was drawn at his request, and conformably to his instructions, but never read to him after it was written. This instrument contained a devise of real estate, and a legacy of L.400. for the use of a school, in the township of Gwyned, and county of Montgomery; and upon the validity of that legacy the present controversy arose. It was proved by several persons, that the deceased, in the year 1784, had talked of leaving money to a school; that about three months before his death, he asked one of the deponents to be a trustee for that purpose; that some months before his death he remarked to another, what better could a man do with his money than to leave it to such a use? that he declared he did not intend all his estate for his child; that he spoke repeatedly of John Evans's making his will; that for fear it should come to the knowledge of his family, he desired it to be left with John Evans; that being indisposed when it was drawn, he desired John Evans to call upon him again with it; that when John Evans called with it again, he was too far gone to read and attend to it; and that the disposition of the real estate contained in the paper produced, was the same which the deceased had, before his death, desired

Page 1 U.S. 278, 279

his brother to mention to John Evans: But John Evans was the only witness who proved any instructions to have been given in respect to the legacy of L. 400. It appeared, likewise, that the same scrivener had drawn another Will for the deceased in the year 1779, which was left in similar circumstances, without the subscription of the testator, or any other attestation than that of the drawer; but this circumstance was made no use of in the argument. Wilcocks and W. M. Smith for the Appellants. We contend 1st, That there is only one witness to prove the instrument in question; and, 2ndly, That two witnesses are indispensibly necessary to the legal establishment of a last Will and Testament. I. The first point, arising from the facts, must be determined by the depositions; and, as no regard can be paid to a recital of the loose expressions which were used by the supposed testator, antecedent to the instructions for drawing his will, it is clear, that the only evidence to support the legacy in favor of the school, must be founded upon the deposition of John Evans, to whom those instructions were given. II. We shall proceed then, to consider the second point, which depends upon the construction of the Act of Assembly, passed in the year 1705, 'concerning the probates of written and noncupative Wills, and for confirming devises of lands.' It is there said, that all wills in writing, wherein, or whereby any lands, tenements, or hereditaments, within this province, have been, are, or shall be devised (being proved by two or more credible witnesses, upon their solemn affirmation, or by other legal proof in this province &c.) shall be good and available in law, for the granting, conveying, and assuring of the lands, or hereditaments, thereby given, or devised, as well as of the goods and chattels thereby beqeathed.' 1 State Laws. 30. The question, therefore, rests upon the meaning of the words, or other legal proof in this province; and, in order to ascertain that, it may be proper to take a short, retrospective, view of the general doctrine, respecting the legal attestation of Wills and Testaments. As the probate of Wills was not a matter originally of common law jurisdiction, the decisions have necessarily been drawn from the civil law, the ecclesiastical law, and the law of nations, engrafted upon the general customs of the realm of England. By the civil law, indeed, seven witnesses were required; but this excess being reformed, first by the ecclesiastical law, which required three witnesses in some cases, and only two in others, and then by the general customs of the kingdom, it is settled in the most authoritative books to be sufficient, that the will and mind of the testator should appear by two competent and disinterested witnesses. Swinb. 5. 6. 45. 46. 3 Salk. 396. For, the general customs of the kingdom are not further controuled, than by the jus gentium, which is likewise satisfied with the attestation of two witnesses. Swinb. 47. God. Orph. Leg. 3. 8. 10. and where, indeed, the disposition is for pious uses, the cannon law, in this respect, corresponds with the jus gentium, although for Ecular purposes, it still requires [1 U.S. 278, 280]

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