The Express.
London, England, 1865-12-16 00:00:00

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PRINCESS'S.
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LONDON. SATURDAY. DECEMBER 16.

THE making of wills is much older than the
Romans, although the law of wills which now pre-
vails in this country has been chiefly derived from
Roman sources. In England, where the value of
property disposed of by will is so enormous, and
under a system which, while it allows the greatest
latitude to the intentions or caprices of individual
testators, requires profound technical knowledge
to express them in appropriate language, it is not
surprising that the judgesshould find themselves cor -
dandy engaged in endeavouring to interpret tes-
tamentary documents. But there are some points
upon which it might seem there ought to be no
misunderstanding. They are so elementary that
most people would conclude they must have been
settled centuries ago. A case, however, which has
just been decided by Sir JAMES WILDE warns us
that such a conclusion might prove too precipitate,
and reminds us that the ingenuity of lawyers is
practically inexhaustible.
The case to which we allude is that of " HAS-
" THAN v. STOBIE." The plaintiff propounded the
will of the testator. The defendant did not deny
that tho will was formally executed by the testa-
tor, or assert that be had been induced to execute
it by fraud. But he said, or (to use the legal
phrase) he pleaded, that the testator did not
Loon and approre of the tont, IltS of the
will in question. It is needless to encumber the
matter with legal technicalities, and therefore we
state shortly that the point which Sir JAMES WILDE
had to determine was, whether a will cannot
be • valid will unless the testator knows and
approves of its contents. Suppose, for instance,
that a man goes to his solicitor or to his friend and
says, " I wish to dispose of my property, but I
" have a vast number of relations, or I don't like
" the trouble of giving you elaborate instructions.
" Yon know my circumstances ; you know my
" ideas as to the manner in which persons ought
"to dispose of their property. I have the utmost
" confidence in your good sense and good feeling.
" I authorise you to draw up a will for me, and that
" will, whatever it is, I will execute." Let us
suppose that the solicitor or the friend accepts the
office ; that he draws up a will which is sensible
enough in its dispositions; and that the tea.
tator executes this will without reading
a word of it, and without knowing or
even asking the character of its contents.
There is surely nothing either extravagant or un-
natural in this. There are many men, and women
too, who would willingly relieve themselves of the
necessity of drawing out elaborate instructions for
their solicitor by simply handing the matter over
to him, or perhaps by directing him to consult
a mutual friend. Indeed, where the property is
very large, and the contingencies to be provided
for are numerous, it is almost impossible for a tes-
tator to understand the various provisions of the
will, or even the terms in which they are expressed.
It is more than doubtful whether most persons of
large landed property perfectly understand the effect
of the deeds under which they bold their estates, or
whether any young lady understands the stipula-
tions contained in her marriage settlement. Strictly
speaking, therefore, it is difficult to believe that
any layman either thoroughly understands or ap-
proves of the contents of any deed or will which
is at all complicated. And, regarded in the light
of common sense, it would seem that a man might
make a good will even although he did not in fact
know the contents of it.
Acoordingly, this was the view adopted by the
late Sit CRESSWELL CRESSWELL. That learned
judge laid it down that " a man might
" make a good will without knowing its
" contents." But Sir JAMES WILDE is of a
different opinion. He says that Sir C. CRE.SSWELL'S
"proposition is rather a startling one, and at
" variance with the universal practice of mankind
"in such matters. A case has probably never
" yet occurred in which • man in possession of his
"full faculties has handed over the making of his
" will to another, and has been content to execute
" it without so much as the curiosity to know what
"it contained." As we have pointed out, how-
it is quite conceivable theta testator of " the
mdest disposing mind " might wish to relieve
Jeff from the trouble of arranging the details
his will. It is one thing to be possessed of
sound mind, memory, and understanding :" it
another to exercise these faculties in the
of arranging the details of a will.
, perfectly true that a testator must possess
these faculties ; he must be able, if he pleases, to
Ixereise them. But surely there are cases in
hick the very beat way in which he could exercise
faculties would be by selecting an able and
icious friend to draw a will, and by following
advice without attempting to change it.
'pon the whole, therefore, it appears that the

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