The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX, Part 61

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440

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The sixth section contains an important alteration of the law of Pennsylvania, in respect to the execution of wills, which is submitted to the legislature, under a strong sense of its propriety and expediency. It has already been stated that the framers of the act of 1705 copied parts only of the statute of 29th, Charles II. That portion of. the statute, which prescribed certain forms for the execution of wills of real estate, was omit- ted; and it was merely enacted that wills in writing, proved by two or more witnesses, should be sufficient to pass real or personal estate. Under the construction given by the courts to these terms, it is now the law of Pennsylvania, that real or personal property, to any ex- tent or amount, may be transferred by a will, whether executed in Pennsylvania or in a foreign country; al- though there be no signature to such will, nor seal, nor attesting witnesses, and although such will be not in the handwriting of the testator; the result of this system is a frequent appeal to the courts for decision, upon papers set up as wills; and the uncertainty produced by it has been the subject of great regret to our most eminent judges and professional men. We may cite for exam- ple, the remark of Judge Reed, in his recent valuable edition of Blackstone's commentaries, while treating of the act of 1705. " It would be much better if due for- mality were observed in the execution of these instru- ments, as it would frequently save a great deal of ex- pense, vexation, and litigation among near kindred."- Penn. Blackstone, vol. 2, page 294.

We are aware that the introduction of forms is not more consonant with the disposition of our citizens and with the genius of the present age, than it was at the era of the act of 1705; and we are not satisfied that it was necessary to require so many formalities as were prescribed by the statute of Charles II. But we think some form of authentication necessary, and we suggest the signature of the party to the instrument as a medium between the extremes, as perhaps they may be called, of the English statute and of our act of Assembly. One of the principal causes, perhaps we may say, the chief canse, of the litigation which has occurred in our courts upon the subject of wills, has arisen from uncer- dainty respecting the intention of the alleged testator. Manuscripts are often found among the papers of a de- cedent, indicating an intention to dispose of property after his death; but whether the intention continued to the period of death, or whether the design was com- plete in itself, or formed only a part of a testamentary disposition, which was intended to be more fully deve- loped, and to establish which, as an entire testamentary act, would defeat the real design of the testator, often remains a problem, because the signature of the party to the instrument is wanting. Thus, if a man having three sons, A. B. and C. and three farms or lots, should leave behind him a paper, simply devising one of his farms or lots to A., such paper, although withont sig- nature, or subscribing witness, might, under our present law, be established as his entire will; and thus A. would receive the farm or lot devised to him, and also share with his brothers the two other farms or lots, although it was probably the intention of the decedent to com- plete his will, by giving to each of his sons an equal share, if circumstances had not prevented him. Now, we think the simple expedient of requiring the signa-

ture of the party to the instrument, will remove these difficulties, and prevent much of the injustice that may happen; as it will show conclusively that the instrument is a complete and finished act, and thus assimilate it to all other entire and concluded documents. Where the party is unable to affix his proper signature by reason of infirmity or otherwise, it is provided that it may be done by another person in his presence, and by his express direction; which facts of course must be proved by two disinterested witnesses. , But, as cases may arise, in which the testator may have given full and complete di- rections for the drawing of his will, which has accord- ingly been put in writing in his. lifetime; but, in conse- quence of the extremity of his last sickness, he may have been prevented from signing it or giving directions for that purpose, we have excepted such cases from the provision, and left them to stand upon the present law. Convinced, however, of the dangerous consequences of the existing provisions, with respect to papers written by a party under ordinary circumstances, we earnestly hope that the amendment offered will be acceptable to the legislature and the public.

Section VII. The seventh section differs from the existing provision, (section III. of the act of 1705, ) in two points: first, in the alteration of the value specified, from £30 to $100, which is believed to be in conformity with the change in the value of money; and secondly, in placing the words limiting the value of the property, where it is supposed that they were originally intended to he, that is, in the second clause of the sentence.

Section VIII. In the eighth section, we have followed the 7th section of the act of 1705, omitting, however, the word " person," so as to limit the operation of it to mariners at sea, and soldiers in actual services. By ex- tending the provisions to all other persons at sea, it is conceived that there would be some danger of those evils in respect to the disposition of property by verbal wills, against which it was the object of a previous sec- tion to guard.

Section IX. The ninth section coincides with the im- provement made in this respect by many of our sister states; and has been introduced from a belief that the intention of a testator has often been defeated by the omission of words of inheritance in a devise of real es- tate.

Section X. In the tenth section we have proposed an alteration equally material with that just adverted to, and which, like that, has the recommendation of having been adopted into the revised codes of some of our sis- ter states. Whatever may be the origin of the judicial doctrine on this subject, whether it has arisen from a literal construction of the statute of Henry VIII., or from an analogy with the law of conveyance by deed, it is believed that the result has been unfortunate for the general intent of testators. It is supposed to be the common impression, that all of which a man may die possessed, will pass by general expressions of gift or devise; and cases of great hardship are known to bave arisen from this misconception of the law in respect to real estate. To accommodate the rule to the course of public opinion, is the object of this section; which, it is hardly necessary to remark, will not prevent testators from making any other disposition that they please of their after acquired property.

Section XI. The eleventh section is copied almost literally from the tenth section of the act of 4th April, 1797.

Section XII. In the twelfth section, will be found the substance of the act of 19th March, 1810, " to pre- vent devises and legacies from lapsing in certain cases."

Section XIII. The thirteenth section is nearly a lite- ral transcript from the act of 1705, excepting that in the latter the provision is confined to wills of personal estate, probably, as we have already suggested, from inadvertence. In this section it is confined to real es- tate.

Section XIV. The fourteenth section relates to the

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DOCTOR RUSH'S LETTER.

1832.]

revocation of wills of personal property, and contains no material alteration of the present law.

Section XV. In the fifteenth section we have copied, with some abridgment, the provisions of the 23d sec- tion of the act of 19th April, 1794.

Section XVI. The first part of the sixteenth section is merely declaratory of the common law; the last clause, which provides that the will of a married woman shall not be revived, by the death of the husband, is introduc- ed to remove doubts that have been entertained upon the subject.

Section XVII. The proviso contained in the seven- teenth section is confined to personal property. The transfer of real estate, whether by deed, devise or suc- cession, is justly regulated by the laws of the country in which it is situate. Personal property is considered as following the person of the owner, and is governed both in regard to succession and transfer, by the laws of the place in which he is domiciliated. In this sec- tion, therefore, we have merely declared the existing law of this, and of most other civilized communities.

From the New York Mirror.

GENTLEMEN-In looking over a collection of letters from my friends and correspondents, the following, from the late Dr. BENJAMIN RUSH, arrested my attention as a communication of peculiar interest, and one which ought not to be confined to the family circle, for whose gratification it was communicated.

In the first instance, it was addressed to JOHN ADAMS, the late President of the United States. In September, 1812, the Doctor inclosed me a copy of the same, in- tended to be seen only by my family and friends. Be-1 lieving it wil be perused with delight and profit by the reader of taste, correct feelings, and religious senti- ments, I send it for insertion in the Mirror. H.

Letter from Dr. Rush to John Adams.

PHILADELPHIA, July 13th, 1812.

" MY DEAR FRIEND-Can you bear to read a letter that has nothing in it about politics or war? I will, with- out waiting for an answer to this question, trespass upon your patience, by writing to you upon another subject. " I was called on Saturday last to visit a patient about nine miles from Philadelphia. Being a holiday, I took my youngest son with me, instead of my black servant. After visiting my patient, I recollected I was within three or four miles of the farm on which I was born, and where my ancestors for several generations had

lived and died. The day being cool and pleasant, I di- [ physician, was named after him. I have often heard

rected my son to continue our course toit. In approach- ing, I was agitated in a manner I did not expect. The access was altered, but every thing around was nearly the same as in the days of my boyhood, at which time I left it. I introduced myself to the family that lived there, by telling them at once who I was, and my mo- tives for intruding upon them. They received me kind- ly, and discovered a disposition to satisfy my curiosity and gratify my feelings. I asked permission to conduct my son up stairs, to see the room in which I drew my first breath, and made my first unwelcome noise in the world, and where first began the affection and cares of my beloved and excellent mother. This request was " Dear and venerable friends! be not offended at me. I inherit your blood, and I bear the name of most of you. I come here to claim affinity with you, and to do homage to your Christian and moral virtues. It is truc, my dress indicates that I move in a different sphere from that in which you have passed through life; but I have acquired and received nothing from the world which I prize so highly as the religious principles which I inherited from you, and I possess nothing that I value so much as tho innocence and purity of your characters. readily complied with, and my little boy seemed to en- joy the spot. I next asked for a large cedar tree that stood before the door, which had been planted by my father's hand. Our kind host told me it had been cut down seventeen years ago; and then pointed to a piazza in front of the house, the pillars of which, he said, were made of it. I stepped up to one of the pillars and em- braced it. I next inquired for an orchard planted by my father. Ile conducted me tu an eminence behind the house, and showed me a number of large apple trees, " Upon my return to my family in the evening, I gavo them a history of the events of the day, to which they at a little distance, that still bore fruit, to each of which I felt something like the affection of a brother. The listened with great pleasure; and partook, at the samo

VOL. IX. 28

building, which is of stone, bears marks of age and de- cay. On one of the stones near the front door, I dis- covered with some difficulty the letters J. It. Before the house, flows a small, but deep creek, abounding in pan fish. The farm consists of ninety aeres, all in a highly cultivated state. I knew the owner to be in such easy circumstances, that I did not ask him his price. for it; but begged, if he should ever incline to sell it, to make me or one of my surviving sons the first offer, which he promised to do.

While I sat in his common room, I looked at its walls, and thought how often they had been made vocal by my ancestors, to conversations about wolves, and bears, and snakes, in the first settlement of the farm; afterwards about cows, and calves, and colts, and lambs; and the comparative exploits of reapers and threshers; and at all times with prayers and praises, and chapters read audibly from the Bible; for all who inhabited it of my family were pious people, and chiefly of the sect of Quakers and Baptists. On my way home I stopped to view a family grave-yard, in which were buried three and part of four successive generations, all of whom were the descendants of Captain JOHN Resa, who, with six sons and three daughters, followed WILLIAM PENN to Pennsylvania, in the year 1683. Ile commande a troop of horse under Oliver Cromwell; and family tra- dition says he was personally known to him, and much esteemed hy him as an active and enterprizing officer. When I first settled in Philadelphia, I was sometimes visited by one of his grandsons, a man of eighty-five years of age, who had lived with him when a boy, and who often detailed anecdotes from him of the battles in which he had fought under Cromwell, and once men- tioned an encomium on his character by Cromwell, when he supposed him to be killed. The late General Darke, of Virginia, and General James Irvine, are a part of his numerous posterity; as the successor to the eldest sons of the family, I have been permitted to possess his sword, his watch, and the leaf of his family Bible that contains the record of his marriage, and of the birth and names of his children, by his own hand. In walk- ing over the grave-yard, I met with a headstone, with the following inscription:

" In memory of JAMES RESE, who departed this life March 16th, 1727, aged forty-eight years.

" I've tried the strength of death at length, And here lic under ground,

But I shall rise, above the skies, When the last trump shall sound."

This James Rush was my grandfather. My son, the him spoken of as a strong minded man, and uncommon- ly ingenious in his business, which was that of a gun- smith. The farm still bears marks of his boring ma- chine. My father inherited both lis trade and his farm. While standing near his grave, and recollecting how much of my kindred dust surrounded it, my thoughts became confused, and it was some time before I could arrange them. Hlad any or all of my ancestors appear- ed before me, in their homespun or working dresses, (for they were all farmers or mechanics,) they would probably have looked at one another, and said, " What means that gentleman by thus intruding upon us?"

218

REPORT ON THE MILITIA SYSTEM.

[APRIL

time, of some cherries, from the limb of a large tree, (supposed to have been planted by my father, ) which my little son brought home with him.

" Mr. Pope says there are seldom more than two or three persons in the world, who are sincerely afflicted at our death beyond the limits of our own family. It is, I believe, equally true, that there are seldom more than two or three persons in the world, who are inte- rested in any thing a man says of himself beyond the circle of his own table or fire-side. I have flattered my. self that you are one of those two or three persons to whom the simple narrative and reflections contained in this letter will not be unacceptable from, my dear and excellent friend,

" Yours, affectionately, BENJAMIN RUSH."

"To JOHN ADAMS, Esq."

REPORT OF THE COMMITTEE

ON THE

MILITIA SYSTEM.

Mr. Ringland, from the committee on the Militia sys- tem, made a report, accompanied with a resolution No. 310, relative to a revision of the Militia system, which were read as follows:

The committee on the Militia system, to whom was referred that part of the Governor's message relating to the militia and volunteers of this commonwealth; and also the proceedings of a Military convention, of which Major John B. Alexander was president, convened at Harrisburg on the second day of January fast, report:

That impressed with a due regard for the high and respectable authorities from which the subject comes recommended to their attention, and with a strong con- viction on their own minds of the many defects in the present Militia system, and the necessity of a radical change therein; they have given to the subject that de- liberate consideration which its importance appears to demand.

In the very organization of our republic, the militia seems to have been a component part of the system, and one, without which the other parts could not long hold together. A people who would be self-governed must be self-defended. The armed yeomanry of the repub- lic are those into whose hands the protection and de- fence of the people's rights can be most safely intrusted, as they are indeed the people themselves, whose liber- ties are to be protected. Butitis not only necessary that our citizen soldiers should be armed, but in some de- gree disciplined, for an armed multitude without disci- pline, must always be more terrible to itself than to its enemies.

In the recommendation of the Governor to patronize volunteers, your committee most heartily concur; but the .neans necessary to accomplish that desirable object presents some difficulties, which, when considered, prac- tically require investigation.

It is much to be regretted that congress has not, be- fore this time, adopted a more general and efficient Mi- litia law, as the existing laws of the United States are no more than the outline of a system. To prepare for the national defence is peculiarly the province of the national legislature, as it is a national concern, and can- not be executed by the laws of the several states with any thing like uniformity, for which some states may (and do) incur considerable expense in equipping and training their militia; some others, on which the public defence equally depends almost entirely neglect it. Thus, the most patriotic states have the burthen to bear, while by the social or federal compact, it ought to bear on all alike, as all are alike interested. In the present prosperous state of the finances of the United States to what purpose could a portion of the revenue be more properly applied than to prepare for the public defence.

We have the authority of the father of his country, ad- monishing us to prepare for war in time of peace, and in the present state of affairs in Europe, it is as much as ever, necessary for this country to put on a defensive armor. And when it is considered that the United States, containing a population of' about thirteen mil- lions, have a standing army of no more than five or six thousand men, (a circumstance without a parallel in the annals of nations) it becomes absolutely necessary that the people shold be armed and disciplined for the pro- tection of their liberties. This can only be done by congress passing such laws as will operate equally on all the states, and oblige all to contribute their part towards putting the country in a proper state of defence. Such a plan as was recommended by a board of officers con- vened by order of the late Secretary at War, to esta- blish camps of instruction in all parts of the union, and to have proper instructors appointed, who should at the same time be under the command of the state officers, would, it is believed, go far to promote the object in view.

The late Military convention having assembled from all parts of the state, and being composed of military gentlemen of the first respectability, were well quali- fied to judge of the propriety of a change in the Militia system, and their opinions are consequently received by the committee with much respect. That convention, though differing in opinion respecting the best remedy to be applied to the present defective system, appeared to admit unanimously that a change was absolutely ne- cessary; and that whatever plan might be adopted as a substitute, that the trainings of all ununiformed militia should be abolished.

It was stated in that convention, that in some counties the musters were conducted in so disorderlya manner, and intemperance and riot prevailed to such a degree, that the courts of quarter sessions bad in some 'in- stances been employed for a whole week together, in settling the disorders that have originated at those trainings.

Viewing the subject at large, the committee have ar- rived at the conclusion, that in order to place the militia of the state in any thing like a respectable condition, one of two courses must be taken; and that either the number of days of training the " militia" ought to be increased, and the fines for non-attendance raised, or, otherwise, to dispense altogether with the militia train- ings, and depend on volunteers. To increase the days of training for the whole militia, under existing circum- stances, would appear to be a waste of time, and while it would accomplish but little in acquiring the military art, it would probably have rather a deleterious effect on the public morals. It therefore follows as a matter of course, that the most economical and most effectual plan is, to patronize volunteers, and to depend on them altogether in time of peace.

The committee are aware that a respectable minority of the convention were in favor of classifying the militia by age, and requiring none to perform active service in time of peace, except those between the age of 21 and 26 years, and to compel this class to uniform and equip themselves under proper penalties; and that those be- tween the age of 26 and 45 should be required to con- tribute a certain sum annually for the support of the junior or active class. An objection, however, meets this plan at the very threshold. That the legislature have the right to compel the whole body of the militia to arm, uniform, and equip themselves in such manner as they may think proper, will not be denied; but their right to compel a portion of our citizens to pay an equi- valent for services which they are not permitted by law to perform, might at least be considered very doubtful. That objection, however, cannot be brought to bear against the system finally adopted by that respectable body; for if all have an option to uniform and equip themselves, or contribute a small sum annually for the support of those who are willing to do so, no injustice will be done.

1832.]

REPORT ON THE MILITIA SYSTEM.

219

The right to compel all the militia to uniform and equip themselves at their own expense, has been exer- cised to the full extent by the legislature of Connecticut, as, by their reviscd statutes, every militia man, as soon as he arrives at proper age, or within six months there- after, is obliged to arm, uniform and equip himself un- der high penalties; and for every day he may appear without his proper equipments, is fined five dollars for field days, and four for company days of training; and also a specific sum for every article of equipment that may be deficient.

With respect to the amount to be levied on each mi- litia man, in lieu of active service, there appears to be a difference of opinion among those best qualified to judge of the result. By communications from a num- ber of gentlemen in the eastern section of the state, it would appear to be the general opinion there, that the sum fixed on by the convention was too small; while in the west it is considered more than sufficient. But tak- ing the whole state together, it is perhaps about a pro- per standard; and as the legislature will at all times bold the lever in their hands, and can raise or lower it at plea- sure, as circumstances may require, there cannot be much difficulty in fixing the proper maximum. As for instance, if the sum laid on cach individual in place of militia duty, should be found to be so small as not to af- ford a sufficient compensation for those who would vo- luntarily uniform themselves, it might at any time be raised to answer that purpose. And, on the other band, if it should prove to be so great as to bring into the field a number of volunteers unnecessarily large, a proper check might be put to it by lowering the fines on ex- empts. It has been suggested that a distinction should be made between the eastern and western divisions of the state, with respect to sums to be assessed for exemp- tion from duty, as money in the middle and western counties is of more value in proportion to time or labor, than in the cast; but this distinction could not be easily brought to practice, as it would be difficult to fix a geo- graphical line that would produce equality. A classifica- tion with regard to property, has also been spoken of, so that individuals should contribute towards the public defence in some measure, in proportion to his property, 'To this also, there are objections, as it is not the money, but the time of an individual, that is required; nor has this principle ever been admitted in our military code -- not even in assessing fines for non-performance of duty when called into actual service.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. IX, Part 61

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 440

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440