
    Harrison et ux. v. Burgess et al.
    
    From Halifax.
    Whore a cause was removed to this Court at a period when the Court, on motions for new trials, considered matters of law only, and during the pendency of such suit, the Legislature declared that this Court docs and shall possess power to grant new trials upon matters of fact as well as law, the Court may consider the case on matters of fact, for such law is not unconstitutional.
    The wife of the testator may be the person to whose safe keeping his will, all in his own hand-writing, is entrusted, according to the acts of the last session of 1784, for in this there is nothing incompatible with that union of person and interest which exists in law between them. '
    Where a will is found in the drawer of a bureau, commonly kept locked, in which the testator’s wife, was in the habit of keeping her money, jewels, &c. and which the testator pointed out as the place for depositing his will, it is found among Ms valuable papers or effects, within the meaning of the act.
    The signature of subscribing witnesses is no part of a will, and if there be but one to a will of lands, it may be proved to be all in the testator’s hand-writing, and to have been found among his valuable papers or effects.
    This was an issue to determine upon the validity of the will of one Irvine. The will, which had but one subscribing witness, had been offered and proved in Halifax County Court, by that witness, as appeared from the endorsement made thereon. It was afterwards offered for probate, under the act of the second session of 1784, by proof that it was all in the hand-writing of the testator, and had heen by him delivered to some person for safe keeping, or that it was found among his valuable effects after his death.
    It was objected below, that the Court could proceed no further to act in the case, it appearing that the paper had already been proven in the County County, before the offering of it a second time. This question was reserved by the Court, and the issue, viz. “ Is the paper writing offered for probate, a good will to convey real estate ?” was submitted to a Jury.
    It appeared from the testimony of the subscribing witness, that a short time before the death of the testator, be, taking the paper out of his bed, already signed by him, declared it to be his last will and testament, and called upon her to attest it. The Plaintiff then offered evidence (which was objected to by the Defendant, but received by the Court) to shew that the paper was all in the hand-writing of the deceased, and. was found among his valuable effects ; and for this purpose, the mother of testator’s widow was called, and stated that the paper was written several days before it was signed, and was kept by testator in his bed ; that after it was signed by him and witnessed, he handed it to the witness, (the mother of his wife,) and desired her to put it away in his wife’s drawer and lock it up, and tliat she immediately did so. This drawer belonged to a bureau, in which the wife kept her trinkets, jewels, money and clothes, and it was always kept locked. It further appeared, by .the testimony of another witness, that he (the witness) accompanied the wife of the deceased home, from the Shocco Springs, at which place Irvine died, and that in the room in which the paper was signed, he saw the widow take the present will out of the drawer of a bureau. This witness did not know whether the drawer was locked, and did not look inside of it. Three witnesses then swore that the whole of the phper, except the signature of the subscribing witness, was in the hand-writing of Irvine. No counter testimony was introduced, but it was insisted, that on the law arising from the facts disclosed, the paper was not the last will of Irvine, under the latter act of 1784.
    The Court instructed the Jury, that although the will had but one witness to it, yet if they were satisfied that it was all in the hand-writing of the deceased, and that it had been found among his valuable papers or effects. or lodged in the hands of any person for safe keeping, that it was sufficiently proven under the act of the se-v r cond session of 1784, and that under that act the wife mjg)^ a depositary. The Jury found that the paper writing was not a last will and testament to convey real estate. A new trial was moved for, and refused, and Plaintiffs appealed.
    
    The case was argued by Gaston for the Defendants, and by Seawell for the Plaintiffs.
    
      Gaston.- —
    -1. The verdict ought not to be set aside as a verdict against evidence. This Court has not power so to do—Wright’s ex’rs v. Wright’s heirs, (2 Law. Rep. 625.) The Legislative declaration, that this Court dines now and shall possess the same power to grant new trials on matter of fact as is possessed by the Judges of the Superior Courts, can only enlarge its power as to future cases, cannot affect a case which was here prior to- the passage of the act—Ogden v. Blackledge, (2 Cranch 277.)—(Bill of Rights, 4th, 12th and 24th sections.) See also the argument of C. J. Kent, (7 Johns. 503.)
    But if the Court has the power, it will not exercise it, if, by any possibility, the verdict can stand with the evidence. An issue of this sort is emphatically confided to the Jury — See act of 1784 — The Jury may have disbelieved the witnesses. The Judge who tried the cause, and who decided every question of law in favour of the appellants, was satisfied with the verdict. It was not possible to anticipate the act of Assembly, and therefore so much only of the case is presumed to be stated, as brings before this Court what was then proper for its consideration. But the verdict was right upon the evidence. The essential ceremonies were not proved. For-qualities required by statute cannot be supplied—(1 Mad. 43.) The will was not found among the valuable papers of the deceased y there is no evidence that it was the saque drawer or bureau spoken of by the mother of Mrs. Irvine y nor that there was any thing in the drawer.
    It was not deposited with any person for safe keeping. It was not given to the mother of Mrs. I. to keep, and she did not keep ity Irvine did not give it to his wife, nor direct it to be given to her, but merely designated the place where it should be put. There is no evidence as to tiie person who kept the key of this drawer.
    2. The verdict ought to stand, for the charge of the Court was erroneous against the appellees in thisy the wife, under the act of 1784, cannot he the depositary of the will. The words of the act are, “ lodged in the hands of any person for safe keeping.” u Lodged,” not kept by himself, but placed with another y — “ any person,” he may select any one he pleases, but it cannot he himself. This case is contradistinguished from that wherein he keeps it among his papers or effects. The wife and her husband are in law oqie person y her existence is suspended y her custody is to all intents his custody — (1 Bl. Com. 442 — 3 Inst. 110.) The evils of such a construction as is contended for on the other side arc great — the wife cannot be a witness for or against her husband, and a will, if she chooses, is perfectly good without any witqiess. '
    3. The charge w?as erroneous in permitting a will partially attested to he proved as a will entirely unattested. The first act of 1784 prescribed what attestation was necessary to make a will valid y the second act was designed for a case where there was no attestation. The two modes of authentication are perfectly distinct. That now insisted on can only apply where the will, and every part of it, is in testator’s hand-writing — the attestation is a part of the instrument — (Co. Lit. 6 «.)
    
      4. The case should be dismissed because the former probate remains incancelled' — that probate is a valid act, and while it remiins in force, the County Court is func-tus 167 — 2 Law Rep. 414, 464.)
    
      Seawell in reply.
    As to, the act of 1821, which declares that this Court “ does” possess the same power, &c. that the Superior Courts possess, it is said that the Legislature is not competent to expound its own meaning, because the Constitution declares that “ the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other.” What is the meaning of these words ? It is that the Legislature, in its character of the law-making power, shall not take cognizance of, or decide any question or matter of controversy between citizen and citizen, nor make any law by which the Courts of Justice should exercise the powers belonging to the executive, nor should either the executive or supreme judicial powers take upon them to legislate. What is there in this to hinder the Legislature from explaining its own meaning In the nature of things it must follow, that as the Legislature possesses power to enact laws, it must possess the power of declaring in the same way, what it has enacted. It cannot indeed say to A, your case is within the meaning, and to B, your’s is without it; but no policy (if questions of policy were proper for the consideration of this Court) interferes with its declaring generally, what is its meaning in a particular act. To declare generally, is to establish a rule ; to declare specially, is to apply it; the former is the office of the lawmaker, the latter belongs to those who are to expound and enforce the law. But it has been said, if the Legislature docs declare that to exist, which does not, its declaration cannot alter the state of things. This to a certain extent is true ; the Legislature, by declaring something has existed, cannot change what has passed , but possessing the power to give new jurisdiction to this Court, declaring that this Court now does possess such jurisdiction, certainly confers it.
    The opinion of Chancellor Kent has been read ; a sufficient answer to it is to be found in 3 Crunch 79, decided by the Supreme Court of the United States, and in 2 Mass. Rep. 120, decided by Chief-Justice Parsons, and in 2 Cranch 386, where the Supreme Court declares, that if the meaning of the Legislature' be clear, it must he obeyed, without regard to inconveniences.
    This act does not present the only instance in which the Legislature has acted upon causes pending in the Supreme Court. Look to the act of 1811, directing that no certificate shall be given by the clerk, no entry shall be made on the record that a cause is decided, nor any execution issue, until a written opinion with the reasons at length shall be filed by the Judges. That act affected existing rights precisely as the present act does. It regulated the remedy for parties litigant.
    But it is urged, ijjpt the wife cannot be the depositary of the will, being one with her husband. The proposition is not universally true — we know that to some purposes the wife is separate and distinct. When a wife is called to testify to any fact, her evidence must be admissible, unless it may concern her husband ; and when he is dead, she may then be classed with all other witnesses. May she not prove, like any legatee, that the will was deposited with her for safe keeping ? The act does not make it necessary the will should be lodged with a stranger, the words arej “ any person.” But if tire will be not good under this clause of the act, it is under the next, because it was found among the valuable papers or effects of the testator.
    As to the last objection. The only enquiry necessary in examining it is this, what is the will ? The answer is, that it is the declaration of a man, seriously made, in regard to the disposition of his property after death. Does, then, the name of the witness, written at the hot-tom, give us any idea of this disposition ? Would the contain a word more or less with or without the name ? The attestation is not part of the will.
    
    
      
       After this cause was removed into this Court, and during its pen-dency here, an act was passed by the Legislature, declaring that this Court " does and shall possess the same power to grant new trials on matter's of fact, as is now possessed by the Judges of the Superio” Courts/5
    
   Henderson, Judge.

This case was brought to this Court before the commencement of the last Legislature, at which time this Court could grant new' trials in matters of law only. At the last session of the Legislature, an act was passed, declaring that this “ Court does and shall possess the same powrer to grant new tiñáis, as weli upon matters of fact as law', as the Superior Courts of Law now have,” and the first question is, does the law of the last session embrace this case ? and if it does, is it unconstitutional, as interfering with vested rights ? The words are plain and unambiguous ; the intention cannot be mistaken ; they prescribe a rule for the government of the Court thereafter; they profess not to interfere with the decisions of the Court under the former law. But it is said, that if by law tire Court did not possess the power, can a Legislative declaration that it does, give the power ? I answer that it does, not by opera- - tion of the old law, but by the new law ; it is only a short way of legislation ; it is simply saying, that by such words, to wit, those used in the former law, we mean such a thing, and when, by the words used, the Legislative will is made known, it is the law of the land; the words are immaterial, and although the Legislature cannot make a thing to be, which is not, by their declaration, as, to make whát is white, black, yet it is competent for them to say by the word white they mean black : and whatever may be the meaning of the former laws upon the subject, we have now a plainly expressed Legislative will, that this Court does and shall possess the power to grant new trials in matters of fact; and this is not a judicial act, which is an exposition of the laws in being, and applying them to particular cases, but purely a Legislative act, declaring the will of the Legislature, to be applied in ail cases thereafter as the rule of action or decision. But it is said, in this case it interferes with the vested rights of the Defendant,, and if so, the Court will not apply it to divest those rights. To declare that the property of A. belongs to B, has been by this Court decided to be beyond tiie power of the Legislature, in the case, Den on demise of Robertson v. Browne, relative to Mrs. Browne’s land.

To decide on this objection, we must examine the nature. of the rights of this Defendant. In the Court below, the Jury found a verdict in his favor; the Plaintiffs moved for a new trial, which was refused by the presiding Judge, and judgment given for the Defendant, upon which the Plaintiffs appealed to this Court; and as regards matter of fact, the Judge below, who refused the new trial, was the only power which could redress any injury which the Plaintiffs might have sustained in matter of fact, at the time the appeal was taken and the cause brought into this Court; but this Court had jurisdiction in matter of law, and was the proper appellate Court, and the appeal was, as it could be only, on the final judgment in favor of the Defendant, and not on the interlocutory order refusing a new trial. By this appeal the judgment was annulled, and all rights derived from it fell to the ground. The alleged vested right of the Defendant is not properly secured, or belonging to him by the existing laws; but by that immunity (arising from the organization of our Courts of Justice) in the enjoyment of the consequences of an erroneous exposition of the Law (if it be erroneous) by an interlocutory order In a cause still'-(lcpcnding, and the legality in the final determination of which (speaking abstractedly) depends upon the correctness of this interlocutory order. This is not such a vested right as that the Legislature cannot extend the powers of the Court wherein the cause is still depending, to examine into the alleged error, and if there is one, to correct it by the rules wliich were in existence at the time the new trial was refused, and by which the presiding Judge should have regulated himself in the de-cisión. A right, to be inviolable by the Legislature, should be one derived from the laws, or at least under a pna] ju(igment of a Court in a case decided, and the parties out of Court: not an immunity from a re-examination of a point in a cause still pending, which point could not be re-examined by the appellate Court on account of its organization. I therefore think that this Court pos-sesáes the power to exajnine the alleged error in fact.— See 3 Cranch 79.

The next question is, has there been an error in fact? The first question presented is, is the wife capable of being a depositary of the husband’s will, under the latter act of 1784 ? The second is, does the finding of the will in a drawer of a bureau, in the dwelling of the husband, and probably in this case in his bed chamber, and where the wife kept her money and jewels, and which was constantly kept locked, and the place pointed out by the husband for the depositing, comply with the requisitions of the act, as to the will being found among the valuable papers or effects of the deceased ? 3d. Is a will all written in the hand-writing of the devisor, except the signature of the name of one attesting witness, there being but one, a will in the hand-writing of the devisor, within the meaning of the said act ?. 4th. There being one subscribing witness, can it be offered as a will under the latter act of 1784 ? 5th. Being heretofore proven by one witness, can it now be proven in the manner pointed out by said act ? Tlicre is an union of interest as well as of person between husband and wife, and the will, governing this united person, resides in the husband, and from this union follow many consequences. They cannot contract, they are but one \ they cannot give to each other, for the same reason ; the wife cannot bind or .affect their joint property, or even her own freehold lands, without the consent of her husband ; for this requires will, and she has none; (I speak not of her powers in a Court of Equity, and particularly where she has separate property ;) and a number of other cases might be put as following from this union; but where the acts affect not the rights of the husband, as husband, She is considered as a human being, and having a human existence 5 she is capable of contracting as agent of the husband, and her purchases or contracts bind the husband as his agent only, and not as wife, for in the latter ^capacity she cannot bind him ; she .may perform a confidential trust for the husband, as attorney ol* friend, because in this there is nothing incompatible with her character as wife, or that union of person and interest which exists between them. Nor is it an objection, that during the life of the husband, she cannot be a witness as to the deposit. No evidence of that, is or can be required during his life; after his death she is as competent as any one | if then rejected, it must be on the score of interest or infamy, as others are liable to be. But allowing that she could not be a witness to prove the deposit, tine same situation would be produced by the death of any deposi-1 tary during the devisor’s life, and this I apprehend would not annul the will. I can see no reasons for disallowing her to be a depositary, but many peculiar reasons for allowing it. I think, also, the place where it was found' was among his valuable effects, if the wife could not be a depositary, for then it was his desk, his money, his jewels, and the key was kept by him by the hands of the wife ; whether taken out of the drawer was a question of fact. As to the third objection, that it is not a will under the act of April 1784, there can be no weight in it. The signature of subscribing witnesses is no part of the will. The witnesses put their names there to be enabled to identify the paper, and where the law requires subscribing witnesses, it is for the. same purpose. Originally the witnesses did not put their names to the paper, but Mis testibus was added by the parties concerned, that they might know on whom to call in case of a dispute The will is not certainly worse by having one subscribing witness 5. it will certainly answer the purpose of more certainly shewing that this is the paper which she saw deposited in the bureau •, going beyond the requisitions of the act, in respect of proofs, certainly cannot annul wj1|c[l comes Up t0 them. I think the fourth objection has been already answered. I can see no reason for the fifth, for its probate as a will of goods does not impeach it as a will of land, and were I to express an opinion upon the third, fourth, and fifth objections, it would be, that if they, have any effect upon the law of the case, which Í think they have not, they would go to support and not to destroy the will. I think the Judge erred in refusing a new trial, and that there must be one.

Tayeor, Chief-Justice, and Haul, Judge, concurred.  