The republic., 1851-10-30
The vai.d,ty OF wills.
From. ns PHILADELPHIA Bldietin, October q.
CHARGE OF JUDGE KING IN THE WILL
CASE OF LEECH VS. LEIGH

eTeu Dy nlIl On IL Will Dc
observed that it merely embraces the law which
governed the case, and which governs every case
contested upon the grounds of unsoundness Of
mind in the testator, or where undue influence
ID used in procuring the will. AS contests OF
similar character are of frequent occurrence,
have considered it important that the pub
lie should be familiar with the views of one oi
the ablest judges Pennsylvania has ever produced,
whose large experience in this sort of urispru-
dence entities his opinions to the fullest confidence.
We therefore give il TO the public The facts OF
the case we're orally given to the Jury by the judge,
and fully commented upon by him:
GENTLEMEN OF THE JURy; The senior counsel for
the party impeaching Ihe validity of this will has
taken occasion to remark, though in no respect of
tensively, upon what he supposes my peculiar SEN
timents to the sanctity of last wills, and the i'm
policy of lending too readily ear to the COM
plants of relatives, seeking to nuiiy them
through the action of this court, which possesses
exclusive jurisdiction over this important subject,
far respects personal estate. He has contrast
ed my opinions with those regulating the admins
tration of other courts of the Commonwealth, and
seems to doubt whether results as favorable to the
community have flowed from them as must have
had in view in ting them.
About to retire 10 private life, after twenty seven
years of public service this bench, and now, for
the last time, &c explain TO a jury my views on the
principles and policy of this important branch of
jurisprudence, must naturally feela deep anxiety
that the doctrines heretofore inculcated by me
have been sound and practical-such as have ad
vanced public justice, maintained private rights,
and promoted family concord.
/ cannot but be sensible that a long and uniform
course OF administration ON subject SO deeply af-
fecting personal feelings, as well as private inter
ess, cannot fail to have had influence for good
for i'll on the community. Yet at this, almost
final moment of my public career, am satisfied
with the retrospectons of the past and feel assured
that system that has had for its base the discour
nfu fnnH and tr1Xn ON "a q
wills must have worked beneficially-in suppress
ing family euds, which only increase in intensity
and bitterness from public exposure, and in arrest
ing family litigation, which rarely fails to extin-
guish family affection. Too great facility given
TO the dscontented and dissatisfied, desirous OF inn
peaching last wills, invites to such experiments,
which, whether successful or otherwise, are sure to
leave behind family discords and hostilities be-
tween those whom the laws of nature, the precepts
of religion and the interests of society require to
live in unity.
When men are, however, taught by the steady
action of courts that wills are sacred things-that
the privilege secured by the laws to the citizen to
dispose of his property by will as TO him shall seem
just, il estimated by the tribunals among the dear
est of social rights-assauts on such instruments
will be made with caution, and controversies be-
tween relatives averted, which would, if entered
into, lead to separations and arrangements alike
detrimental to their interests and subyersive Of
their happiness
Hence 1t has ever been sentiment under which
have uniformly acted, that he who comes into
court of Justice king to nullify last will and
testament, executed with all the forms and proved
in the manner required by law, has on hand a most
serious task. And that courts and lures, IN deter
mining between htigant parties in such controver-
sies have duty to perform peculiarly calling for
intelligent deliberation, disciplined judg and
dispassionatc decision.
With the motives that have led to the disposition
Of his property by testator, competent and unln-
luenced, with their abstract propriety, or wisdom,
courts and juries have nothing to do except so far
these considerations may shed light on the cues
ton whether the paper propoundcd as VIII Is the
true expression of the wishes OF the testator. Ii
courts and juries should decide on the validity or
invaidity of wills, simply according TO their own
notions to what they ought to be- the privilege
secured by law to the citizen to dispose of his pro-
perty by will would be ga sounding brass and
tinkling cymbal."
The motives which have led to particular dis
position of his property by cstator, often reside
In his own breast, and are inaccessible to others
That disposition, which on its lace may seem
strange and harsh, may, and of;en is, the natural
result of the circumstances under which 1t mas Deen
made-circumstances within the te6tator'5 own ex-
elusive knowledge, and with which he has not seen
fit to make the world cognizant Should courts
and juries enter into such sea OF speculative IN
quiry. then navigation would be prosecuted with
out guiding chart, or directing compass, and con-
tinually end in disastrous shipwrecks.
Hence, in such Investigations az the present,
courts confne themselves to the inquiries whether
an instrument propounded as lasI will and tesla
ment is executed in the manner prescribed by the
statute; whether it contains the true and free ex-
preston OF the tesator's wishes unconstrained by
force, and uninfluenced by fraud; and whether, at
the time of its execution, he possessed the esta-
mentary capacity requisite TO execute such an In
strument. In most cases the question IN Issue Is
that of the testafcnary capacityj and this is en-
phatcally the question here.
There are few subjects coming before courts OF
law that ought to be better understood by toe gen.
eral community than what is meant in our courts
by the phrase 'ttestamentary capacity" And yet
there none in which the pubic Is more III error
The prevalent idea is that In order 10 constitute
'testamentary capacity, the intellect of estator
should be in Its most perfect state of integrity, and
possess all its original force and vigor
This, however, is an erroneous view OF the sub
ect. If such were the requirements of the law, few
wills would stand test 80 severe. superstitious
dread of executing such instruments; timid fear
that such execution may be the immediate precur-
cor of death, leads TO postponements and delay
And it continually happens that the final disposi-
ton of mans estate, by his last will, ls the last
business act of his life. One who s enfcebled and
exhausted by the pains and sufierings OF a mortal
disease and whose mind is agitaied by the hopes
and fears of eternity, can hardly be said to have
his intellect in perfect state OF integrity. And
yet large portion OF wills are made under such
circumstances, and are every day sustained IN
courts of Justice. A disposing mind and memory,
in the view of the law, is In which the testator
is shown to have had, at the making and execution
of last will, full and intelligent consciousness of
the nature and effect OF the act he was engaged in;
a PoooSo9Sb,
understanding of the disposltionhe wished to make
of il by the will, and of the persons and objects he
desired to participate in his bounty. The wills Of
the aged and infrm are alike good, although, when
compared with their condition in the vigor OF life,
the minds of such testators may seem relatively en-
feebled; provided they shown, at the making
and execution of such wills, to possess such dis
posing minds as have just defined to you.
Even the will of maniac s good, provided it
has been made during lucid interval; during
time in which his mind has been restored to
healthy though temporary action. The party,
however, setting up such Gaze must establish
clearly the existence Of the lucid interval during
which it has been made. For general testament
tary incapacity once shown is presumed to con-
tinue until the fact of temporary capacity is
.ablished by convincing proois.
Tcstamcntary incapacity does not necessarily
suppose the existence ofinsanity properly SO called
Weakness of intellect, from extreme age, from
great bodily inirmity, from intcmperance, 10 e
trtent of fdsqualifying testator from knowing and
apprcciating the nature, effect and consequences
OF the act he is engaged in, is as much testamen
tary incapacity as raving madness. II from any
alleged testator is enfecbled in mind as
to be incapable of knowing the property he pos
sesses; of approaching the effect of any disposition
made by him of il; and of distinctly understand
ing to whom he intends to bequeath IT, he lie with
out the testamcntarY capacity required to make n