4 Rawle 323 | Pa. | 1833
The opinion of the court was delivered by
In the report of the judges on the statutes, nothing is said about the 32 and 34 Hen. 8. which are therefore to be taken as not in force here; but whether they were considered as having never been soror as supplanted by our statute of 1705, cannot be positively known. They were most probably thought to be repealed and supplied, as they were entirely within the rule laid down by Lord Holt in Blankard v. Galdy, 2 Salk. 411, and repeated by the Privy Council, as appears from the relation of the Master of Rolls in 2 P. Wms. 75; that an emigrant colony carries with it the laws of the parent to an uninhabited country; or even to one acquired by conquest, so far as regards matters in respect io which the existing laws are silent, or enjoin what is immoral, or are contrary to the religion of the conqueror. It is plain that a country whose entire population has been displaced to make room for the new comers, is an uninhabited country for the purpose of receiving their laws; and therefore it seems singular, that the distinguished judge who ruled Blankard v. Galdy, should shortly afterwards have held, in a case which involved the legality of slavery, that the laws of England did not extend to Virginia, being a conquered country; and the more so, as the laws of the aborigines, if they had any, could not be supposed to have provided for the subject. Be that as it may, our courts have always held that the laws which were in force at the foundation of the colony, and not positively unsuitable to the condition of the colonists, were brought by them hither; and it cannot be thought that laws which enabled them to dispose of real estate, were unsuitable. During the twenty-four years that elapsed between the charter and our statute, they could not have been without provision on the subject, and I know of none that was competent to satisfy their necessities but these very statutes ; for it will appear in the sequel, that the inter-
The clause which has been supposed to make this difference, is in the first section. After requiring proof by two witnesses, and establishing a mode for its authentication, it is declared that wills so proved, 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 bequeathed;’ and from the parity of provision thus expressed, is inferred an intention to create a parity of operation and effect. That such was not the object, seems manifest from the legislation which preceded it. By
This sketch of the legislation which preceded the act of 1705, and which is here given in the order, and nearly in the words of a distinguished counsel, to whose research I am indebted for it, seems to put the intention of the legislature beyond the reach of doubt. The magnitude of the interest in contest, amounting as it does in value to more than sixty thousand dollars, as well as a respect for the doubt suggested by my brother Huston, has induced me to examine the foundations of this part of our law with peculiar care; and the result is a firm conviction, that the real estate acquired subsequently to the two codicils, did not pass by Mr. Girard’s will: consequently, the plaintiffs are entitled to the succession under the intestate laws.
Judgment for the plaintiffs.