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3 1832.)

FIRST ANNUAL REPORT OF LAFAYETTE COLLEGE.

191

its northern exposure, and the deficiency of prepared! Our present difficulties therefore, and they are serious manure, rendered this the least productive expenditure and embarrassing. but not insurmountable, are such as of labor. The first and the last of these evils, will in a relate: to the increase of students: the deficiency of degree be remedied by the next season, so that we hope shop room, tools, and capital in business: and to the for a more equitable return from the soil.

absence of library and apparatus: and to the want of The mechanical department, and the business of the permanent and suitable garden grounds. entire establishnient has been under the direction of The number of students properly within the plan of Mr. Daniel Gaston, as agent. Reserving the details of the College as a boarding and manual labor institution, work in the regular branches for the appendix, we will cannot exceed fifty, in the winter season-because there here give some account of the first and heaviest job. are not rooms to accommodate more. In summer six

The buildings on the rented premises being entirely or eight more can be admitted. This number is scarcely insufficient to accommodate the students, and the family sufficient to afford full employment and moderate comof the President, an addition was indispensable, and it pensation to the Professors now engaged. It could be was necessary to have it ready for occupancy on the greatly enlarged, if convenient lodgings could be proopening of the summer term, on the 9th of May. It cured. was moreover desirable to construct it by the labor of Our shop room too, will not afford opportunity of the students, and that too without an entire suspension work to all our hands in the winter: without alternating, of their studies: therefore it was necessary to begin it which is often difficult to arrange on account of the before the 1st of April. Accordingly, the President class recitations, it will be impossible to find employwith a volunteer corps from the academy at German ment. The stock in trade is private, being the property town, arrived at the premises on the 14th of March, and of the President, and quite limited: which therefore proceeded to work next day. When the ground was cannot be expected to yield large results. The branches marked out for the new building, it was partly covered of manufacture pursued, require considerable delay in with snow and frozen. The quarry too, from which the returns, and of course render imperious the extenthe stones were taken, was rendered very difficult to sion of the capital. open by reason of frost, the ground in both cases facing A literary institution without library and apparatus, the north. The work however progressed, and on the cannot hope success in the higher branches of study. 31st, the remnant of the students and their teachers, in their absence it is not reasonable to expect, nor would with the family of the President arrived; and the build it be right that young gentlemen should remain during ing moved on more briskly, and was ready by the 9th their junior and senior years. Accordingly, our more of May. It is a frame of very plain workmanship, thirty- advanced students are making, or have made, arrangeone feet square, two stories high, with garret rooms fi- men's for entering other colleges to complete their nished and basement for work shops. It is divided into course, where these facilities are enjoyed. Our most eight lodging rooms, two school rooms, and the shop, pressing wants however are those of globes, maps, phi. and was constructed by the labor of the students, except losophical and chemical apparatus. eight days work in the quarry, the masoning and plas The impolicy of expending time, labor, and money, tering.

in improving, either by building or the preparation of Our blacksmith shop is small, and affords employ- garden grounds, on so short a lease, is perfectly obvious. ment for only two hands-our own smithing has occu. Our young men might labor, but the harvest of their pied them more than the regular term for work. The toils world remain to be gathered by other hands. This farm work and the manufacture of trunk handles, and difficulty we have considered as first in the order of irons for cultivators, bas chiefly employed them. The time, and not least in importance. And therefore the branch which seems most likely to succeed, and to suit Board, convinced as they are, and as they think every the nature of our hands, is the manufacture of packing reflecting reader will be, by ihe facts detailed in this boxes, for the city consumption. Our arrangements report and appendix; that the plan of education connectare such now that we feel able to go into the market ed with productive manual labor is PRACTICAL; and is with the city box makers, on equal terms. Our boxes the only plan whereby classical and scientific attainare put in bales, and we have an agent in the city to ments can be brought to the door of the poor as well as put them together and deliver them to our customers. the rich; and ibus every youth of sound mind and noble

We are also prosecuting the trunk making business spirit be enabled to educate himself; have not hesitated with success. There is however more variety of ope. to meet and remove this difficulty. This they have done ration, and consequently it requires more care and ca- by the purchase of nine acres of land within the borough pital in proportion to the number of hands.

limits, on the north side of Bushkiln creek, facing North Agricultural implements have been made to a small Pomtret street. This plot of ground is very elevated, extent: and we hope to see the day when “the Lafay- overlooking the town of Easton and the adjacent rivers ette Plough” will be in great demand.

Delaware and Lehigh with their bridges and canals, Number of Students.

their inclined plane and locks, and commanding one of

the very finest views in all the variety of our very varied The summer term of the College opened on the 9th and picturesque scenery. The quantity of land is inof May, with forty-three students; which number in deed too small, but it may be enlarged as means increase, creased in a short time to fifty-six, the utmost that could and it will afford sufficient room for the buildings and be received into the buildings. There bave been also garden grounds. It has moreover the peculiar advaneleven day scholars, making the highest number at one tage of access to the fine gravel spring water which time sixty-seven. Many applicants have been refused flows through it the iron aqueduct of the "Easton Wafor want of room.

ter Company.". On "Mount Lafayette," therefore, it is Health,

the purpose of the Board to erect, during the ensuing

summer, a College building, shop, barn, &c. and there. Our experience continues to justify the utmost confi. by to remove two others of the present difficulties, dence in manual labor, as a pro-phylactic remedy leaving only the matters of library and apparatus. against the diseases incident to the sedentary life. These so far as indispensable we hope also to procure Present Condition.

shortly. The Institution occupies premises inadequate to its

Oor Future PROSPECTS, present accommodation. They are held on a lease However, depend very much, for their complexion which will expire April 1st, 1834, and which cannot be upon the sunshine of public favor. We, as a Board, renewed without relinquishing a large part of the arable are without resources, other than the common resources land, and this would render the rent exorbitant, of every benevolent and ennobling enterprise; the

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boundless resources of gratuitous, voluntary contribu. iron works. It is expected that this will be put in ope.
tions, and of legislative bounty. Our young men in ration next spring. Several other dwellings will be
deed are willing to labor, Many of them must be large added to Norristown this fall,
ly the makers of their own fortunes. They have bone
and sinew and nerve, moral, intellectual and physical, JEFFERSON COLLEGE.-By a catalogue of the officers
and a disposition to use them in building up their indi- and students of Jefferson College, at Canonsburg, Pa.
vidual and the public interests. But then, active power, it appears that there are in that institution, 28 Seniors,
must have material on which to operate. Egypt's 48 Juniors, 54 Sophomores, 53 freshmen, 55 in the pre-
tyrant, until maddened by jealousy, demanded not the paratory school, and 7 irregulars-total 237.
tale of bricks, without furnishing straw, Let the ma-
terials be furnished, and our youth will erect a monu TAE MERCER POTATO.--The best of all roots of the
ment more durable than the pyramids, with the addi- potato kind called by this name, is the production of a
tional glory of registering and transmitting its own neighboring state. It has been a question among our
history to all future times. Let the morning sun of farmers for many years, whether it was produced by so
public favor shed abroad its fostering beam upon this improved mode of raising them, or whether it was a
Institution, so shall his moontide splendor and his even- foreigner. We are at length able to settle this question
ing ray sparkle in glory from the fame of La FAYETTE, by the assistance of a kind friend. He says the species
FACULTY.

of potato called the Mercer, was originally raised in The Faculty on whom the Government of the Insti Mercer county, Penn., by a gentlemen by the name of tution rests, consists of:

Gilkey, and are there called Naphannocks, from the Rev. George Junkin, A. M., President, and Professor name of a creek, which passes through that county. of Mental and Moral Philosophy, Logic, Rhetoric and About twenty years since, this gentleman planted the Evidences of Christianiiy.

apple, or ball of potato, from which has sprung this Mr. Charles F. M'Cay, A. B., Professor of Mathemat. delightful root.-Delaware Journal. ics and Natural Philosophy.

Mr. James J. Coon, A. B., Professor of the Latin and Two hundred and fifty-four Eels were taken in a Greek Languages.

fish basket, about a mile and a half above Mifflintown, Samuel Ď, Gross, M. D., Professor of Chemistry, on Monday night last. One of them weighed 44 pounds; Mineralogy and Botany.

and several others were nearly as large.
Mr. Daniel Gaston, Business Agent.
Mr. Thomas Pollock, Farmer,

September 14, 1833.
Trustees,

Match CAUXk-We are happy to learn among other
Jam's M. Porter, President, Thomas M'Keen, Trea, decided indications of the growth of our town, that ap.
surer, Joel Jones, Secretary, Peter Miller, Philip plication has been made for a lot with the necessary
Mixsell, Jacob Weygandt,John Bowes, Christian H.Hut- water power, for a large Brewery. The applicant, we
ter, Jacob Wagener, George Barnet, John Carey, jr., understand, is an enterprizing capitalist from Easton,
William Shouse, Peter Ihrie, jr. John Worman, John The sale of the lot in question will include, as we are
R. Lattimore, Joseph K. Swift, Peter S. Michler, Jesse informed, the only remaing part of the Town Plot at
M. Flowell, Philip H. Dlattes, George Hess,jr., llopewell present in the market.
Hepburn, Easton.

There are several other branches of business to which
George Wolf, Harrisburg.

we should think the place might offer good encourage. Robert Patterson, John Hare Powell, Peter A. ment, and which from the increase of business of almost Browne, Andrew M. Prevost, Benjamin Tilghman, J. every other description, will probably be much wanted. M. Scott, Solomon Allen, Philadelphia,

Among other mechanics, it has been suggested to us Jacob Kern, Bath.

that a tanner, a chair maker, and a tallow chandler,are George Weber, Kreidersville, Anthony M'Coy, Mar, much wanted in this place-Maueh Chunk Courier. tin's Creek, George G. Howell, do. Northampton co. Walter C. Livingston, Allentown, Lehigh co.

Tue OMNIBUS. - It may not perhaps be generally William Long, Durham, Bucks co.

known that a stage Coach, or to use the more modern

term, an Omnibus, has recently been stationed at the Tue Martins. --Mr. Trissler, of this city, who has Mauch Chunk Hotel, for the accommodation of the citi

. for some years past noted the departure of the purple zens and visiters at this place who may wish occasional. martins (hirundo purpurea) from this neighborhood, ly to take a ride to any of the neighbouring places in has favored us with the following statement, from which this vicinity. Such an establishment has been hitherto it appears that those birds have gone off earlier this very much wanted here, and we have no doubt that season than they did previously within the last nine the enterprizing proprietor, Mr. J. Rice, of Allentown, years.

will be liberally patronized for this valuable accession
In 1824 they departed Sept. 15

to the convenience of the place. Ibid.
1825
do

10
1826
do
13

FRANKLIN, Pa, Sept. 7, 1833.
1827
do
17

We regret to learn that the fall crops throughout
1828
do
15
this county have suffered severely from the late frosts

.
1829
do
13

On the night of the 26th ultimo,the frost first appeared,
1830
do
11

and many fields of corn and buckwheat were totally
1831
do
15

destroyed, and others more or less injured. The neighi. 1832

15

boring counties have also suffered from the same cause,
1833
do

and we learn that in Butler county, ice of the thickness On the whole, these ærial travellers appear to observe of a dollar was formed. The long drought which has a remarkable regularity in their migratory movements, visited us, and which has hurt vegetation very much, is the greatest variation in these nine years not exceeding at length succeeded by refreshing rains, which we thirteen days.-Lan. Examiner.

hope will invigorate and revive the crops that yet re.

main uninjured. -Democrat. MILL.-Among the various improvements which the borouglı of Norristown, Pa. is now undergoing, the COAL TRADE.-The Delaware and Hudson Canal large mill which Mr. Savage is erecting is a very im- Company have loaded with Coal, from the Lackawanna portant one. It will be over 145 feet long, and 50 wide; mines, between the first of April and the 1st of Septemwill contain two large water wheels

, and all the neces- ber, 150 barges averaging 320 tons each, 11 brigs, 156 sary machinery for a rolling mill, nail factory, and other schooners, and 384 sloops, making a total of 565 vessels

.

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HAZARD'S REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF BVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

EDITED BY SAMUEL HAZARD.

VOL. XII.-NO. 13. PHILADELPHIA, SEPTEMBER 28, 1833. NO. 300.

LATIVE

TO

THE

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GIRARD'S INTESTATE REAL ESTATE. tween Market and Arch streets, late Stiles's estate, purA pamphlet has lately appeared entitled “TKE DE

chased by the same, December 21, 1831, cistON OF THE SUPREME COURT OF PENNSYLVANIA RE- It is agreed that the above action be entered to the

AFTER-PURCHASED REAL ESTATE OF above term, as if a Summons in Ejectment had been THE LATE S. GIRARD, STATED AND CONSIDERED." Af.

regularly issued and returned served, and that the

description of the property, and the dates at which ter furnishing Sections IX. X. XI. XII. XIII. XIV.

Stephen Girard acquired the same, may be altered of the will, relating to the private Legacies-Section and amended according to the deeds. XXII. containing the bequest of 300,000 dollars 10 the Case stated for the opinion of the Court, as upon a special state, and Section XX. relating to the residuary lega

verdict. cy-and the codicils—a schedule of the after.pur Stephen Girard, Esquire, late of the city of Philachased Estate and the amount of Legacies paid, is in- delphia, Banker, died on the 26th day of December, serted, Then follows an account of the amicable set forth in the agreement to enter the above action;

1831-seized in fee of all and singular the Real Estate actions of ejectment entered before the Supreme Court, purchased by him at the dates mentioned in the said for the purpose of deciding to whom belongs the pro. agreement-having first made and executed his last perty contended for. Those proceedings, and the opi- will and testament, dated the 16th day of February, nion of the Court, are now inserted.

1830, and codicils thereto, dated respectively on the 25th day of December, 1830, and the 20th day of June,

1831, duly proved in the Register's office for the City The following amicable actions of ejectment were

and County of Philadelphia, on the 31st day of Deentered in the Supreme Court of Pennsylvania, for the cember, 1831, [prout will and codicils which are to be Eastern District, on the 8th and 13th of October, 1833. considered as part of this case) and leaving at the time Louis Vidal and Françoise Fenellon

of his death, the following named heirs at law.
his wife,
1.-Etienne Girard,

a brother of July, 1832.

the testator of the whole blood. The Mayor, Aldermen, and Citizens of

No. 44.

2.-Antoinetta Hemphill, wife of John Hemphill, Philadelphia,

Henrietta Clark, wife of John Hemphill and Antoinetta his wife,

John Y. Clark, and Caroline Haslam, wife of John John Y. Clark and Henrietta his wife,

B. Haslam; the said Antoinetta, and Caroline be. and John B. Haslam and Caroline his

ing the children of John Girard,deceased, a brother

No. 45. wife,

of the testator of the whole blood). Same,

3.-Françoise Fenelon Vidal, the wife of Louis Vidal,

the said Françoise Etienne Girard,

Fenellon being the daughter of Sophia Girard Ca. No. 46.

payron, deceased, a sister of the testator of the Same.

whole blood. The following is a copy of the agreements under Estate. The deeds granting the Estate mentioned to

T'he defendants are in possession of all the said Real which they were entered, and also of the cases stated the said Stephen Girard, are to be considered as part of for the opinion of the Court. Amicable action in Ejectment, for the following described If the Court shall be of opinion that the said Real Estate,

Real Estate.
Two houses and lots on Walnut street, between Se.

or any part thereof, was devised by and passed under

the said will and codicils to the defendants, then cond and Dock streets, Nos. 63 and 65, and one house judgment to be entered for the defendants, for the and lot on Dock street, No. 61, purchased October 5, whole or such part of the said Estate as was devised 1831, by the late Stephen Girard.

and passed. If the Court shall be of opinion that the A lot of land in Passyunk township, containing 60 said Real Estate, or any part thereof, was not devised acres and 87 perches, purchased by the same, October by and did not pass under the said will and codicils, 27th, 1831.

then judgment to be entered for the plaintiffs, for one A house and lot on the north side of Coates street, undivided third part of the Real Estate, in the agreewest of Sixth street, purchased by the same, October ment mentioned, or for one undivided third part of 27th, 1831.

so much thereof as was not devised by the said will A lot of ground on the northeast corner of Coates and codicils, to the defendants. and John streets, purchased by the same, November 2, The cases were argued, and 1831.

On the 29th March, 1833, judgments were entered A house and lot in South Third street, No. 48, pur in favour of the plaintiffs in each suit, and the followchased by the same, November 4, 1831.

ing opinion of the Court was drawn up by A messuage and lot of ground in Passyunk town. Gibson, C. J In the report of the judges on the ship, having a front on Schuylkill, purchased by the statutes, nothing is said about the 32 and 34 Hen. 8. same, Deceraber 1, 1831.

wiich are therefore to be taken as not in force here; Stores, wharf, and dock, in North Water street, be- but whether they were considered as having never been VOL. XII.

25

08.

08.

}

this case.

80, or,as supplanted by our statute of 1705, can not be a restraining statute, not an enabling one; and this plainpositively known. They were most probably thought ly shows what, in his opinion, was the law before. It to be repealed and supplied, as they were entirely with was therefore to remove a doubt of the interpretation, in the rule laid down by Lord Holt in Blankard v. Gal- or to repeal the law taking the interpretation of the dy, 2 Salk. 411, and repeated by the Privy Council, as Chief Justice to have been established in any event appears from the relation of the Master of the Rolls in 2 to restore the law to its former footing—that the act of P. Wms. 75; that an emigrant colony carries with it the which he speaks, was passed in 1693. Of the legislalaws of the parent to an uninhabited country; or even tion which took place in relation to proof of the instruto one acquired by conquest. so far as regards matters ment, I shall have occasion to speak again. It seems in respect to which the existing laws are silent, or en. pretty clear, then, that the English statutes of wills join what is immoral, or are contrary to the religion of were originally in force with us, and not reported as the conqueror. It is plain that a country whose entire being so still, only because the judges thought that our population has been displaced to make room for the own statute was designed to supersede them in their new comers, is an uninhabited country for the purpose whole extent. Judging of the substitute by its provi. of receiving their laws; and it therefore seems singular sions, it might perhaps as easily have been deemed but that the distinguished judge who ruled Blankard v. Gal- | ancillary to them as performing the same office in re. dy, should shortly afterwards have held, in a case which gard to the.n here, by exacting in addition to their re. involved the legality of slavery, that the laws of Eng-quirements the observance of particular solemnities as land did not extend to Virginia, being a conquered matter of proof, that is performed by statute of frauds country; and the more so as the laws of the aborigines, in England. But even as an enabling statute,our act of if they had any,could not be supposed to have provided 1705 was not a new law, but an act of legislation on the for the subject. Be that as it may, our courts have al- basis of an old one, which is therefore to be taken into ways held that the laws which were in force at the foun- consideration in the interpretation of inexplicit clauses, dation of the colony, and not positively unsuitable to because it is reasonable to presume that no departure the condition of the colonists, were brought by them from the existing law was intended further than is exhither; and it can not be thought that laws which pressed. For this reason it is, perhaps, that the act has enabled them to dispose of real estate, were unsuitable. always been understood by the profession, in accordance During the twenty-four years that elapsed between the with the British statutes. Had a variance been suspectcharter and our statute, they could not have been with ed, it must long ago have been put to the test of judicial out provision on the subject, and I know of none that decision; but no trace of such suspicion is to be found in was competent to satisfy their necessities but these very our judicial record. It is argued, that whatever the gestatutes; for it will appear in the sequel, that the inter- neral rule may be, the clauses in the codicils of this will vening legislation on the subject of wills, had regard to which require real estate acquired subsequently to pass the proof of the instrument and not the power of the as if it were then the estate of the testator, make the case testator, with perhaps the single exception of the act to an exeption to it; and the question therefore is not one of direct “ how the estate of any person shall be disposed intention but of power. But even in the case of a general of at his cleath,” passed the ioth of March, 1683. By residuary devise, the intention to pass the estate is taken that act, which may be seen in the Appendix to Hall for granted; and wbat is there in the specific expression and Seller's edition of the laws, page 9, it was provided: of such an intention here, but a greater degree of cer“ That whatsoever estate any person hath in this pro. tainty in respect to what is in other cases taken for vince or territories thereof, at the time of his death, un- granted? Nothing in the books but the dictum in Brett less it appear that an equal provision be made else. 0. Rigden, Plowd. 344, gives color of authority to the where, shall be thus disposed of; that is to say, one supposed distinction. There it is said to have been dethird to the wife of the party deceased, one-third to the termined in the 39 H. 6. 18, that if a man devise a cerchildren equally, and the other third as he pleaseth; and tain estate and have nothing in it at the time, but pur. in case his wife be deceased before him, two-thirds chase it afterwards, it shall pass; because, as it is said, shall go to the children equally, and the other third to it must be taken that his intent was to purchase it, and be disposed of as he shall think fit, his debts being first were it not to pass, the will would be void. All this was paid.” In the margin we have these observations by repudiated by Lord Holt in Bunker v. Cook, 11 Mod. Chief Justice Kinsey: “1. This act seems to restrain 278, as being not even the dictum of a judge, but an the power of devising more than one-third of the lands assertion of counsel and unwarranted by the book cited of which a man died seized. 2. This law, for aught I for it; in which he is supported by Chief Justice Treby find to the contrary,continued till the first of the fourth in Archer v. Bokenham, 11 Mod. 163. In truth the month, 1683, when a law passed authorizing a man to matter never depended on the actual intent; nor yet, devise all his real estate." This repealing law I have as it was at one time supposed, on the restrictive words been unable to find. But it is observable that the act of the English statutes, and it is therefore of no importof 1683, included land, if at all, only by force of the ance to the question that those statutes were not report. word. "estate” and not of any more specific term; so ed as in force here. It is true that in Cutler and Baker's that it is by no means clear that the inclination of Judge case, Lord Coke laid great stress on those words; but Kinsey's opinion, for he spoke doubtingly, accorded in Bunker v. Cook, or Broncker o. Coke, as it is reportwith the true construction or actual understanding of ed in Holt's Rep. 247, it was asserted by Lord Holt that the times. He could not have known by experience Chief Justice Bridgeman had differed from Lord Coke the construction put on the act in practice, for his notes in attaching importance to those words, in a case deterwere written probably forty years after the repeal of it; mined in the Common Pleas the 16 Car. 2. and that the and if he had been a member of the profession during judges in the Exchequer Chamber were of the same that period, he was not till 17.30, an inhabitant of Penn. opinion: this too on the relation of Chief Justice Bridgesylvania. Granting his opinion to be that land was in- i man bimself. But what puts the matter at rest is, that cluded, it is pretty evident the crown thought other in this case of Bunker v. Cook, the rule was applied in wise; for judging from the jealousy evinced by it in all its rigor to lands which were devisable, not by force the case of much less important innovations. It is scarce of the statute at all, but by custom; and the judgment to be believed, that it would have tolerated for ten was affirmed in the House of Lords. The doctrine was years so violent an infraction of the spirit of the charter vigorously maintained in that case as well as in Bucken. which required a conformity of the laws to those of the ham v. Cook (Holt's Rep 248) by Lord Holt; and in mother country, as a restriction of the dower of devis- Archer v. Bokenham, by Chief Justice Treby; who toing to a third of the testator's land, or the dower of his gether rested it on these propositions: That a will is a widow to be turned to a fee. But if it were even applicable species of conveyance, not strictly subject to the rules to land, still it was vicwed by the Chief Justice but as of conveyances at the common law, it is true, the vesting

:833.]

GIRARD'S INTESTATE REAL ESTATE.

195

of the estate being postponed till the death of the testa is the very act under consideration; and it seems clear tor; yet operating, 38 regards his disposing power and therefore that he considered the act of 1682, as the law capacity, by relation to the making of it, insomuch as of his day, except so far as it was amended by the Act to require his power over the estate to be perfect at the of 1705. His notes were written certainly after 1713, time, just as his capacity must be perfect at the time, it as they contain a reference to acts passed in the close being settled that the want of a disposing mind and me of that year, and probably after 1730, when he removed mory at the performance of the act of disposition, is not from New Jersey to Pennsylvania. He was appointed supplied by the restoration of it before the death, Chief Justice about the year 1743, and died in that for the same reason that an intervening loss of it will office, according to Proud, in 1750. The Act of 1682, not prejudice a disposition unexceptionable at the time however, was amended only as to the time of proof and -in other words, that the act of disposition must be the manner of authenticating it, the requisition of two complete in every respect at the performance of it: witnesses being preserved. But this is not all. An Act That a tes! ator, like any other granter, can not give had been passed at New Castle in 1700, (Append. to what he has not; and that the same principle prevails Prov. Laws, 7,) which expressly fillowing the analogy in conveyances to uses though construed liberally like of conveyances as to the effect of the instrument, rewills, to favor the intention, as in Yelverton v. Yelver- quired no more than legal proof without specifying the ton, Cro. Eliz. 401, where a father covenanted to stand number of the witnesses. It therefore bad, or might be seized of land which he should purchase: That the form supposed to have, the effect of putting wills of lands of pleading a devise, the testator always being described upon a lower footing as to proof than wills of chattels, as seized at the time of making his will, is strong though about which it said nothing, and consequently left them not conclusive evidence of the necessity that it shall be on the footing of the general law. To say the least, it so in fact: That the reason why land differs in this re

was open to an argument that one witness was sufficient spect from personal estate, is that the common law has for a will of land as in the case of any other conveyance provided in the event of intestacy, a fixed successor to of land. This Act having been repealed by the Queen the one and not to the other, even the statute of distri. in Council, as may be seen in Weis and Miller's edition bution being but a direction to the executor how to ad of the laws, page 18, our present act was passed in the minister the assets; by reason of which, and the fluctuat. same year, and the requisition of proof by two witnesses ing nature of personal estate, which is changing every restored, with new provisions added as to the mode of day, a different rule would require a new will to be authenticating it; and thus the reduction in the quantity made every day: That a subsequent purchase giving of proof made by the Act of 1700, was taken away, and the land to the testator, is repugnant to the import of wills of land were again put, as to proof, on the footing the devise which would give it to the devisee; of testaments of chattels. It is needless to ask why. It and therefore not to be intended to have been was an express condition of the charter that the laws made in subservience to the object of the will: And for the regulation of property should conform, as nearly finally, that there is no case or authority to warrant the as might be, to the laws of England, till altered by the opposite doctrine. To the argument of such men as provincial legislature; and the same jealousy of innovathese, it would be presumptuous in me to attempt an ad- tion which prompted the crown to repeal the act for the dition, and I therefore refer the student to their reasons abolition of survivorship between joint tenants, passed as stated in the report. The alleged dependence, then, in 1700, as well as the two acts for barring entails by a of the doctrine, on the restrictive words of the British deed acknowledged and recorded—the one passed in statutes being disposed of, it results that the question 1705, and the other in 1710, (Hall and Seller's edition stands here exactly as it did in England, unless the spe of the laws, Append, 18, 19,)-might on a question of cific provisions of our own statute be thought to make further departure from the statute of frauds, induce it a difference.

to stickle about a witness more or less. The clause in The clause which has been supposed to make this our statute of wills, to which I have particularly advert, difference, is in the first section. After requiring proof ed, seems therefore to have reference to the proof and by two witnesses, and establishing a mode for its authen. not the effect of the instrument. The first was all that tication, it is declared that wills so proved, “shall be was in contest between the province and the crown. good and available in law for the granting, conveying, The fifteenth law agreed upon in England, or rather the and assuring, of the lands or hereditaments thereby Act of 1682, remained in force twenty-three years withgiven or devised, as well as of the goods and chattels out opposition; and during that time, wills of lands and thereby bequeathed;” and from the parity of provision testaments of chattels stood on the same footing. But thus expressed is inferred an intention to create a parity no sooner did the act of 1700 reduce the proof of the of operation and effect. That such was not the object, former, or bring it into doubt, than it was repealed by seems manifest from the legislation which preceded it. the Privy Council; and when the present act of 1705 By the fifteenth law agreed upon in England, it was raised it again to the level of the act of 1682, the crown declared that “all wills and writings attested by two acquiesced. At no time does there appear to have been witnesses, shall be of the same force as to lands as other a disposition to change the effect of a will of lands as conveyances, being legally proved within forty days, understood in England; indeed the very suspicion that either within or without the said province.” This wa such a design was harbored, would have defeated it. evidently designed to preclude that provision of the sta- on the contrary, the language of all our laws is incomtute of frauds which requires three witnesses, and is parably more emphatic than that of any Act of Parliaworthy of special notice beside, not only for treating ment, to show that a will of lands was esteemed a conwills of land as conveyances, but for putting them on veyance and no more. This sketch of the legislation, the footing, as to proof, of testaments of chattels, which, which preceded the act of 1705, and which is here given by the Canon, and consequently by the English law, in the order and nearly in the words of a distinguished require but two. Lea v. Libb. 3 Salk. 396. This fun- counsel, to whose research I am indebted for it, seems damental law received a regular statutory form from the to put the intention of the legislature beyond the reach first Assembly, convened at Upland in 1682, by whom of 'doubt. The magnitude of the interest in contest, it was enacted as the forty.fifth section of the Great amounting as it does in value to more than sixty thouLaw, and in the terms in which it had been expressed sand dollars, as well as a respect for the doubt suggestin England, with the exception of two immaterial wordsed by my brother Huston, has induced me to examine introduced, the last of them evidently by inadvertence. the foundations of this part of our law with peculiar Chief Justice Kinsey's note in the margin is, “This Act care; and the result is a firm conviction, that the real as amended in the fourth of Queen Anne, remains to estate acquired subsequently to the two codicils, did not this day.” Prov. Laws, App. 7. Now the fourth of pass by Mr. Girard's will: consequently the plaintiffs Queen Anne, which he pronounces but an amendment, l are entitled to the succession under the intestate laws.

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