The national whig., 1847-06-30
From the New Orleans Delta II
THE GREAT WILL CASE.
JUDGE MARrIn,s WILL VALID


The Staie vs. p. b. Nlartia This suit. in
volving the validity Of ihe viii Of the late Chief
Justice OF this State, and which had been lie
cided BY the Second District Court against The
defendant, on the ground that the late Judge
Martin. being blind, could not make will,
and that the said will was fraud on the State.
and a violation Of the statute which imposes
tax Of 10 per cent, on all bequests made in this
Stale 10 foreigners. was. determined yesterday
by the Supreme Court. The property Of Judge
Martin was bequea,hed entirely to his brother,
a naturalized citizen Of the United States.
whilst he had sisters aud nephews and nieces
living in France. It was alleged that this be
quest was intended for the benefit, and in trust
for the foreign relations Of the Judge.
The case was yesterday finally settled in
favor Of The validity of the will. The Court
say (per Ros,. Judse,) lha, they will not con-
slider any nul'ines as sufficient 10 set aside a
will, except those coming within the legal
in,endment Of act l2, Civil Code. "A blind
man can enieT into contract Incapac,ies
and defects Of form are siyicii j,uis, and will
not be presumed.
This case is purely nulli,y from defec,
of form. That the testator could make nun
cupalive, is not denied.
There is no provision of our code incapaci-
tating blind man from making an Geographic
will. ''aa
None Of the French authorities expressly
deny the right of making an Geographic will
to blind man. The Partidas is the only au-
thori,y for the plaintiff, and that does not
apply in this State.
When a man can write, he can make an
olographic will. On this point the authorities
are numerous, and are cited at length.
The natural capacity Of a party to make a
will. is matter in pGis dependent on circum,
stances. II 10 question Of fact. When il is
proved that the late Chief Justice Of this State
could not write, the fact Of his incapacity TO-
make an Geographic testament may be shown.
The second ground Of nulli,y set up BY the
plaintiff, alleges fraud. This may be proved BY
any circumstances tending to show an inten-
lion. on the part Of the testa.or, TO ransmi,
his property TO his foreign heirs, coupled with
An intention, on the part Of the instituted heir,
to execute said intention Of the testator. Il,
must, however. Be expressly alleged. and can
not be presumed.
The proof Of the fraudulent intent, relied on
by plaintiff. is found in the answers Of defen-
dant 10 the interrogatories propounded. He
says distinctly, that his brother told him he
made him his heir, to do with his fortune as
he wished" As to the intention Of The defen- |
dant. he says he intends to dispose Of his fortune
according to his own will. This is no evasion
vr tt.o 4arsrfUu asKeu. TIB associates on the
Supreme bench were all sworn, but they only
proved that he strongly disapproved ot the ACT
Of iS42, imposing the tax Of ten per cent. on
beluests 10 foreigners, but never had any rea-
son 10 believe that he intended 10 evade said
law.
The Court says that "the life and character
Of the tes,ator, as exhibited in the jurisprudence
of the State for the last thrty-four years, salts
fes US. as il did Judge Bullard, that he could
not and did not intend to commit fraud. I'll
is shown that he was on good terms with his
relations; that he repeatedly gave as a reason
for instilu,ing his brother his universal legaee,
that he was of the same tastes and habits as
himself; that he would be m a,,tre hi meme,
and take care Of them, as he had been in the
habit of doing.
Several facts are adduced in favor Of this
position. Among others il is shown thatJudge
Martin had offered to buy sugar plantation for
his nephews if they would come to this coun-
try, but on their refusal 10 do SO he did not buy
and might be evaded, cannot be taken as proof
Of, or deliberate intention to, evade il.
The relatives, for whose benefit, in fact, il is
alleged, that his fortune was left to his brother,
are the the children OF sister whom he had
never known or seen at the time he made this
will. Upon what principle Of human action
can it be explained, that man of great intel
lect, occupying the highest Judicial station Of
the State, known 10 us from our youth as hay.
ing been a law writer himself, and who, W hat
ever may have been his oddities aud faults,
justly prided himself on the purity Of his life,
shauld have died nerpetrating vile fraud for
the benefit OF relatives unknown 10 him
There is another view far more consirtent
with his character. The love OF independence,
was a passion with him, and the things
of this earth by which indepeudepce is secured