Newman v. Colbert

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The decision of the Ordinary against the will in this case, was taken by appeal to the Superior Court. Upon the trial on the appeal, the caveators moved to dismiss the cause, upon the ground, that six months having- elapsed since the speaking of the pretended testamentary words, and the testimony to prove them not having been reduced to writing withing six days after the making of the alleged will, no evidence whatever could bo received to set it up. The caveators below and here, relied upon the 20th section of the Statute 29th Charles II. ch. 3, which is in those words: “after six months j>assed after the speaking of the pretended testamentary words, no testimony shall be received to prove any will nuncupative, except the said testimony or the substance thereof were committed to writing within six days after the making of the said will. ” 1 Williams’ Executors, 65.

The plaintiff in error, not controverting this section of the Statute in its general application, or denying that its requirement had not been complied with in this case, and admitting that more than six months had transpired since the testamentary -words were uttered, claims that the judgment of the Court sustaining the motion to dismiss was erroneous, because the 20th section of the Statute 29th. Charles II. is repealed by our own. Act of 1805, authorizing an appeal from the decisions of the Court of Ordinary. Prince, 238. This is the only point which he makes. His argument is, that the appeal, as a matter of necessity, carries the hearing of the cause beyond the six months; that before the expiration of the six months, he is allowed to prove the will, although the testimony was not reduced to writing within six days; that the appeal takes up the case, with every right which on the trial before the Ordinary belonged to the appellant, and as the first hearing was before the expiration of the six months at which timo it was his right to prove the will, the appeal in this case carries with it *40 this right; and farther, unless this be conceded, the right of appeal is unavailing and a mockery. Now, such being the rights of the appellant, he insists upon it, that the Legislature in conferring them by the Act of 1805, did thereby repeal all anterior laws and parts of laws in conflict with them, among which is the 20th section of the Statute of 29th Charles. Either then, says the learned counsel, this section is repealed, or the right of appeal granted by the Act of 1805, is a nullity. But we do not think that either of these conclusions are inevitable. On the contrary, we think that the 29í7¿ Charles may stand, and with it, in every perceivable harmony, the Act of 1805.

The whole effect of the Act of 29th Charles, is, by forbidding all evidence after six months, unless it is reduced to writing within six days, to establish the kind of evidence which should alone after that time, be competent to set up a nuncupative will — not exactly written evidence, but evidence which litterally or in substance has been reduced to writing within six days from the making of the will. It ordains a rule of evidence. Now the right of appeal, and the evidence by which the appellant’s cause is to be supported, are very different things. Giving that right does not disturb the rules of evidence in the cause. Whether the party can sustain his case by legal testimony or not, his right to appeal is the same. In this and all cases, the appellant takes the risk of making out his case according to the rules of law which govern the trial. He is not obliged to appeal; and if he does, knowing that he cannot prove his cause by such testimony -as the law requires, he acts unwisely, and cannot complain of consequences. With equal truth, it might be said that an appeal repeals the law of evidence in every case. With equal truth it might be said that because a party is entitled to appeal, a witness interested in the event of the suit may be sworn. The very same exclusion of evidence complained of here, might very well take place without an appeal; for if for any cause the caveat before the Ordinary is delayed in its bearing beyond six months, no testimony could be then received, which had *41 not been reduced to writing according’ to the provisions of the 20th section 29th Charles.

It is the duty of the Courts if possible to give effect tb all laws, studiously avoiding the annulling of any. The appeal is in subordination to the law of evidence. And we see no conflict between the Act of 1805 and the 20th section Statute 29th Charles II. That section was -enacted to prevent frauds and perjuries, perhaps more easily perpetrated and incurred in cases of this sort than any other. It is to be strictly construed, and is a most wise and salutary enactment.

Let the judgment be affirmed.