James Madison Papers

Nicholas P. Trist to James Madison, 4 January 1832

Washington, Jan: 4. 1832.

Dear Sir,

Your favor of the 2d—postmarked 3d—was received this morning, after the departure of the mail. I immediately set about ascertaining what the law of Maryland was on the point in question, at the time of the cession: this being the law of Washington county in the District of Columbia, unless altered by act of Congress, which, I have ascertained, has not been done.

The act of the Legislature of Maryland 1798, "for amending & reducing into System, the laws and regulations concerning last wills and testaments" is now the rule here. It provides that "all devises and bequests of any lands or tenements devisable by law, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed, in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void & of none effect."

On examining a previous law (in part not superseded by the one just quoted from) concerning the probate of wills made out of the state, I found a passage which allowed, by implication, that such a will might be valid without witnesses. In the hope that it might be so, I had recourse to Mr Maxcy, now Solicitor of the Treasury, one of the most eminent maryland practitioners: the class that it is always safest to consult on points of detail. His reply was, that the provision to which I referred could not be relied on—that a devise of real estate in Maryland, wherever made, must, to be safe, be executed in strict accordance with the forms of the Maryland law—that there must be three subscribing witnesses; and that, moreover, they must subscribe in presence of one another. He mentioned a late case, of a will made in Philadelphia, which proved worthless from being defective in this particular. The law of Maryland, it seems, does not even notice holograph wills.

According to this, there must be three subscribing witnesses; they must subscribe in the presence of the devisor, and in the presence of one another.

From the words of the passage quoted by me, it is evidently not necessary (as it is in some places, particularly when the instrument is not holograph) that the actual signing by the devisor should be in the presence of the witnesses. Still, it may be well to use words to this effect, (which although they literally attest the actual signing, are in common use when the witnesses do not see it) "Signed in the presence of us, A, B and C; who, in the presence of the testator and of one another, hereunto set our hands."

I have been intending, ever since its receipt, to write on the subject of your favor in relation to Genl. H’s oration; but have been prevented by a succession of interruptions: among them, this detestable influenza, which although it has not actually laid me up—as it has most of this family and of every other—has repeated its efforts to do so, and has kept my head stuffed so as to obstruct all working of the brain.

Your constitution, I fear, cannot long withstand the undermining effects of this rheumatism: nor, however the thought of your departure from us may grieve me, can I wish that a protracted existence in incessant pain should be your lot. I need not say that to be useful in any possible way to you or to mrs. Madison will afford a gratification, to be treasured in my bosom, and dwelt upon with feelings which few things can awaken, as, in the progress of my own journey, I look back to the Sunniest Spots through which my good spir[it] has led me. Affectionate adieux

N. P. T.

RC (ViHi: Nicholas P. Trist Album Book); partial draft (DLC: Nicholas P. Trist Papers). Draft dated 1831.

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