The opinion of the Court was delivered by
Huston, J.
In the infancy of the province of Pennsylvania, when wealth was not common, and the distinction between real and personal estate, as to liability for debts, had been abolished, an act of assembly was passed concerning probates of written and nuncupative wiHs, and for confirming devises of lands. This act of 1705 differed widely from that which our ancestors had left in force in England, both as to the substantial and formal requisites of a valid will of lands. The construction put on it, soon after its enactment, handed down by tradition, is first found in Dallas’s Reports, in a written and permanent form; but that decision was made by judges who had been lawyers as early as 1750, and who in their youth must have been. acquainted with others who had practised, in 1730, or even 1720. Some have in our day questioned the correctness of the construction early given to this law; but as it has been acted upon to. the present day, and as it has been decided that a trial and decision expressly on the validity of a will does not preclude heirs or devisees from again contesting the matter in ejectment for lands, that construction has become a rule of property, and if we should now change it, we should give occasion to many suits and destroy many titles (now held good) in the hands of heirs and purchasers. The legislature have at present before them á bill on the subject; until some provision by them, we are bound by many considerations to adhere to what has been decided, even though some of those decisions have gone further than we could wish. “All wills in writing, wherein or whereby lands, tenements or hereditaments within this province have been or shall be devised, being proved by two or more credible witnesses, upon their solemn oath, or by other legal proof, in this province,” &c. The case of Slight v. Wilson, 1 Dall. 94, has remained unshaken; it settles: first, that it is not necessary that a will devising real estate in Pennsylvania; should be sealed; second, nor that all the subscribing witnesses should prove the execution; third, nor that the proof of the will should be made by those who subscribed as witnesses; fourth, nor that the will should be subscribed by witnesses. See also 2 Binn. 414. I shall not cite all the cases in our books. Lessee of Eyster and others v. Young, 3 Yeates 511, is nearly this case. There Mr Rudisill took drawn notes from the mouth of the testator, of the disposition of his property, intending to draw a formal will; two persons were in the room and heard them dictated; they heard them read over to testator and approved. Mr Rudisill drew them into a formal will more copiously and fully, and containing some clauses which Mr Rudisill had. trusted to his memory. The [464]*464identity of the paper-was contested, and not more fully proved, not so fully as in this case. The notes were established as the will by a verdict in conformity to the charge of the court. That case, and Arndt v. Arndt, 1 Serg. & Rawle 256, fully establish, that memoranda written by another, and proved by two witnesses to have been approved by the testator or written by the testator himself, though not put into a formal will and not signed, being proved by two witnesses to be the testator’s handwriting, may be a good will.
In the present case, Frederick Fehl and John Hubley fully prove the memoranda to have been dictated by the testator, and to have been read over to him and explained by Mr Hubley, and in some parts corrected at this reading; and then to have been declared to be all fight by the testator. It was read a second time after these corrections had been made, and these explanations given, and declared to be all right. This paper was taken home by Hubley to draw a formal will, and one was drawn, but executed by the testator without being read to him, and for that reason rejected from probate.
Jacob Fehl corroborates these witnesses; he was present while part of the directions were given, but went away; the next day the testator told him Hubley was drawing the will; and again told the witness to bring it out from Hubley to him, and the witness did so. It was executed without being read, because all these were Germans, and could not read English.
The identity of the paper was as fully proved as is generally possible; and that was left to the jury, together with the credibility of the witnesses.
But the counsel for the opponents of this paper as a will, taxed the memory of Frederick and Jacob Fehl, and supposed the account they gave of the several bequests differed in some of the details from the written memoranda, and drew an argument against its validity from this. Now if a formal will is read in the presence of the witnesses, before its execution, and they in court prove the sanity of the testator and see the execution of the will, and then on being asked as to its contents, differ a little or a good deal, or if after the lapse of fifteen years, as in this case, this want of recollection or inaccurate recollection would at all affect the validity of the will, or the bequest contained in it, we had better cease to write wills. So in this case, after the proof given, that it was dictated by the testator, read over and explanations made and corrections, and then read again -and all approved, it is beyond being impugned by the failure of minute recollection of witnesses as to its minute details. The witnesses prove distinctly, that every possible pains were taken to have these minutes correct; they were written item by item as dictated; read oyer item by item, explained and approved; and then all read together, and all approved. That those who did this, or who were present when this was done, do not recollect, after fifteen years, all that was then written, or do not recollect it exactly as written is natural; is what must always happen; and is one main reason why wills must be in wri[465]*465ting. It is possible to destroy the force of written memoranda, by proving them to have been unfairly taken down, or falsely read. In the same manner a will or deed may be impugned. It was not openly, nor I think covertly, suggested, that John Hubley was guilty of any thing like this. It was not put to the witnesses to say positively, that any thing was in these minutes which the testator did not direct; nor to say, that the witness was sure he directed any thing which is not to-be found there. They stated the directions according to their recollection; but no one of them was asked to point out n material variance, nor to say, that his recollection of any particular was so perfect that he would himself rely on his own recollection in contradiction to the minutes.
There were two bills of exceptions to the admission of testimony; neither of which was much insisted on here.
The first is, that the memorandum or minutes taken down by Mr Hubley should not be read to the jury~now I should like to know how the jury could have decided one of defendant’s points, viz. whether the parol proof of instructions, and the minutes agreed or differed, unless the minutes had been read; but I pass this. Wherever two witnesses prove a paper as a will, such paper always has gone, and always must go to the jury, who are to decide whether, on the whole proof, it is the will of testator or not.
The next bill of exceptions is still less tenable.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the Court was delivered by
Huston, J.
In the infancy of the province of Pennsylvania, when wealth was not common, and the distinction between real and personal estate, as to liability for debts, had been abolished, an act of assembly was passed concerning probates of written and nuncupative wiHs, and for confirming devises of lands. This act of 1705 differed widely from that which our ancestors had left in force in England, both as to the substantial and formal requisites of a valid will of lands. The construction put on it, soon after its enactment, handed down by tradition, is first found in Dallas’s Reports, in a written and permanent form; but that decision was made by judges who had been lawyers as early as 1750, and who in their youth must have been. acquainted with others who had practised, in 1730, or even 1720. Some have in our day questioned the correctness of the construction early given to this law; but as it has been acted upon to. the present day, and as it has been decided that a trial and decision expressly on the validity of a will does not preclude heirs or devisees from again contesting the matter in ejectment for lands, that construction has become a rule of property, and if we should now change it, we should give occasion to many suits and destroy many titles (now held good) in the hands of heirs and purchasers. The legislature have at present before them á bill on the subject; until some provision by them, we are bound by many considerations to adhere to what has been decided, even though some of those decisions have gone further than we could wish. “All wills in writing, wherein or whereby lands, tenements or hereditaments within this province have been or shall be devised, being proved by two or more credible witnesses, upon their solemn oath, or by other legal proof, in this province,” &c. The case of Slight v. Wilson, 1 Dall. 94, has remained unshaken; it settles: first, that it is not necessary that a will devising real estate in Pennsylvania; should be sealed; second, nor that all the subscribing witnesses should prove the execution; third, nor that the proof of the will should be made by those who subscribed as witnesses; fourth, nor that the will should be subscribed by witnesses. See also 2 Binn. 414. I shall not cite all the cases in our books. Lessee of Eyster and others v. Young, 3 Yeates 511, is nearly this case. There Mr Rudisill took drawn notes from the mouth of the testator, of the disposition of his property, intending to draw a formal will; two persons were in the room and heard them dictated; they heard them read over to testator and approved. Mr Rudisill drew them into a formal will more copiously and fully, and containing some clauses which Mr Rudisill had. trusted to his memory. The [464]*464identity of the paper-was contested, and not more fully proved, not so fully as in this case. The notes were established as the will by a verdict in conformity to the charge of the court. That case, and Arndt v. Arndt, 1 Serg. & Rawle 256, fully establish, that memoranda written by another, and proved by two witnesses to have been approved by the testator or written by the testator himself, though not put into a formal will and not signed, being proved by two witnesses to be the testator’s handwriting, may be a good will.
In the present case, Frederick Fehl and John Hubley fully prove the memoranda to have been dictated by the testator, and to have been read over to him and explained by Mr Hubley, and in some parts corrected at this reading; and then to have been declared to be all fight by the testator. It was read a second time after these corrections had been made, and these explanations given, and declared to be all right. This paper was taken home by Hubley to draw a formal will, and one was drawn, but executed by the testator without being read to him, and for that reason rejected from probate.
Jacob Fehl corroborates these witnesses; he was present while part of the directions were given, but went away; the next day the testator told him Hubley was drawing the will; and again told the witness to bring it out from Hubley to him, and the witness did so. It was executed without being read, because all these were Germans, and could not read English.
The identity of the paper was as fully proved as is generally possible; and that was left to the jury, together with the credibility of the witnesses.
But the counsel for the opponents of this paper as a will, taxed the memory of Frederick and Jacob Fehl, and supposed the account they gave of the several bequests differed in some of the details from the written memoranda, and drew an argument against its validity from this. Now if a formal will is read in the presence of the witnesses, before its execution, and they in court prove the sanity of the testator and see the execution of the will, and then on being asked as to its contents, differ a little or a good deal, or if after the lapse of fifteen years, as in this case, this want of recollection or inaccurate recollection would at all affect the validity of the will, or the bequest contained in it, we had better cease to write wills. So in this case, after the proof given, that it was dictated by the testator, read over and explanations made and corrections, and then read again -and all approved, it is beyond being impugned by the failure of minute recollection of witnesses as to its minute details. The witnesses prove distinctly, that every possible pains were taken to have these minutes correct; they were written item by item as dictated; read oyer item by item, explained and approved; and then all read together, and all approved. That those who did this, or who were present when this was done, do not recollect, after fifteen years, all that was then written, or do not recollect it exactly as written is natural; is what must always happen; and is one main reason why wills must be in wri[465]*465ting. It is possible to destroy the force of written memoranda, by proving them to have been unfairly taken down, or falsely read. In the same manner a will or deed may be impugned. It was not openly, nor I think covertly, suggested, that John Hubley was guilty of any thing like this. It was not put to the witnesses to say positively, that any thing was in these minutes which the testator did not direct; nor to say, that the witness was sure he directed any thing which is not to-be found there. They stated the directions according to their recollection; but no one of them was asked to point out n material variance, nor to say, that his recollection of any particular was so perfect that he would himself rely on his own recollection in contradiction to the minutes.
There were two bills of exceptions to the admission of testimony; neither of which was much insisted on here.
The first is, that the memorandum or minutes taken down by Mr Hubley should not be read to the jury~now I should like to know how the jury could have decided one of defendant’s points, viz. whether the parol proof of instructions, and the minutes agreed or differed, unless the minutes had been read; but I pass this. Wherever two witnesses prove a paper as a will, such paper always has gone, and always must go to the jury, who are to decide whether, on the whole proof, it is the will of testator or not.
The next bill of exceptions is still less tenable. After the plaintiffs had gone through their testimony, the defendants produced the paper drawn by John Hubley as a formal will, and which had not been read by or to the testator; but which the testator had executed in the presence of two persons, who had subscribed it as witnesses; ■and the defendant called those witnesses and proved the execution of it by them; this, evidently, with the intention of arguing to the jury, that, this latter paper was the true will.
That paper had, however, been offered for probate, by the same persons who now offered the minutes as the Will, and on a trial of a feigned issue in the same court, before the same judges, it had been decided that the paper now offered by the defendants as the will, was not the last will of Tobias Stehman; and the plaintiffs offered and read the record of such trial and decision. In /act, the defendant’s counsel ought not to have offered as the will that condemned paper; if objected to, the court ought to have rejected it/when it had been read, the shortest way of disposing of it was, to show the record which had disposed of it.
Points were proposed as matters of law, on which the court was requested to instruct the jury. Some of these are not in the most perspicuous form; some are immaterial; some suggest matters not material in this cause. The charge of the court was an answer to all that was material in this case, and in it there was no error against the party complaining; if any thing was at all wrong, it was in their favour.
Judgment affirmed.