6 Pa. 409 | Pa. | 1847
As the argument for the defendants in error in support of the principal point, is founded on the peculiar provisions of the present statute of wills, it is; necessary to 'compare it with its predecessor." The act of 1705 provides that wills off land, “ proved by two or more credible witnesses on their solemn affirmation, or by other legal proof,” should-be good and available in law. The adjunct of pther legal proof was not intended tó be. in any thing a substitute for the testimony of the two witnesses; but, without expressly conceding the morality of a judicial oath, to let it in as a substitute for an affirmation, it is scarce necessary to. remark that the public conscience' at.that day was tender on the subject. .-The statute therefore required that-.the execution of a will should be proved by nothing less than the oaths or affirmations of two witnesses. But the question — what shall constitute the corpus of a will, was left to 'be determined by the 32. and 34 H. 8, and the decisions on them; in accordance wijfch which, it was held that a Will, in Pennsylvania, need not be signed or proved- by all the subscribing witnesses, of -be subscribed by witnesses at all, or have been seen' by the testator, or read'to him, if it was put upon paper .before the breath was out of him. That was the old law; and the mischief of it was that, as it was unnecessary for -the testator to have adopted the instrument after it was finished, or to have put the finishing stroke to it liims.elf, it followed,that memoranda for the. preparing of a will, dictated by a dying man and read over to him by a_ scrivener, or’rough drafts of unfinished dispositions in contemplation of death, or indeed any scrap of testamentary type found among a dead man’s papers, might be admitted to probate. To correct this, the statute of 1833 enacts that “ every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall bp signed by .him at the end thereof, or by some person in his presence and by his .express direction ; and in all cases shall be proved by the oath or affirmations of two'or.more competent witnesses: otherwise.such will shall be of no effect.” Now what did this add to .the previous solemnities of execution-? The 32 and 34 H. 8, had required that a will of la-nd be put in writing; the act of 1705 had required that it’ be proved by the oaths or affirmations of two witnesses; and to these provisions the act of 1833..added another, partly borrowed from the English statute of frauds; that .it be signed at the end of
The remaining assignment of error, however, is not sustained. Signing at the end of a will was required by the statute to prevent the evasion of its provisions that followed the English statute of frauds, which the judges hold to be satisfied wherever the testator’s name, in his own handwriting, was found m the introductory or any other part of the instrument. Besides, as all the devises in a will constitute one instrument, signing at the end of it serves to show that the whole disposition of the testator’s estate was finished and not in embryo, which the want of a formal act of authentication had before left room to doubt. The argument, that all which precedes the signature, having once been formally executed, should remain stable, and that the additional matter alone should be rejected, is plausible but unsound. It is evident that the
Judgment reversed, and venire facias de novo awarded.