Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-10-30
OFFICIAL.

:
Watterson, deceased. The other son Of said Marga
ret denies that the said paper is valid or her vii
An issue OF deUisdDH oct was formed in the Cir
cult Court Of HaWkins and decided in favor OF the
plaintiff, and heVin vas established. It appears
iron the bill Of exceptions that the said Margaret
had bat the two children, Henry and James, that she
apparently had equal affection for them, sad ofteu
declared that she intended to divide her property
equally between item. She died ia 1850 or 1851,
al the advanced age Of near ninety yesJs In Feb
Tuary, 1854, this paper was presented for probate
IL Is dated In 1896 and gives almost her entire Is
/ tate TO Henry, by whom il was written. Il was
l witnessed by Thomas and Henry Larkins. They
/ lived eight or ten miles from her She in company
with the wife OF her Henry, went their houses
and got them to witness and keep the viii for her
She was ilhterate and could neither write nor read
writing Henry Larkins says, g She took me out
sna told me she had her viii, and she wanted me
witness II and keep It. I told her would read il
10 her. She said it vas the will and she knew what
was in it. She stated as the reason she would not
let me read it, that would be talking about it She
made her mark to the WI, and then and Thomas
Larkns witnessed it ct her request and in her pres
enes then sealed il Up, and she told me to keep
It. The statement Of Thomas Larkins is very much
the same in substance. There is no direct eYldsree
that the paper vas ever read 70 her, and the fret
question is, whether that is indispensa able in the
case Of iliterst, persons The Circuit Judge eharg
cd that it WAS nol but it vas enough for the jury
to be satisfied that she understood the contents 20
matter by what means. 1T was not necessary -
he said for the plaintiff to shoT By the evidence
that ihs will was read to the teststrix before she
signed il. All the law requires in such cases is
that the jury shouldhe satisfied from the proof that
the tsstatEx at the time Of the execution Of the Bi
fully nndsr5toodit its contents THAT this knowledge
might be made out by positive or eireumstanstiaI
tesrimony-that the declarations Of the testatrix,
at the time, and previous TO the execution Of The
will was competent testimony 10 shoW knowledge
Of contents- There aretWO grounds in this case TO
excite suspeiOR and distrnst-the hliteraey Of The
teststrixi and the fsct hat the paper written
tirely By the principal IeEaiee. The general rule
that the free aud voluntary execution Of paper by
any one in his right mind, viii be sufficient priHa
fdeis to establish knowledge Of its contents, does
not apply to case in either Of these eategories,
much less to that falls into both or rather these
cases are exceptions to the general rule. In such
cases the presumption Of knowledge does not arise
and the burthen. Of proving it. lies upon the pro-
pounders. The doctrine in relation 70 will written
by legatee under it, discussed and settled BY
this Court in the case of Patton vs. Allison, Hamph
334-5. It is there held in conformity to the Eag-
sh authorities cited, that the circumstance should
excite strong suspicion, and calls upon the Court 10
be vigilant and jealous in the examination of the
evidence in support Of the will and not pronounce
in its fsYOr unless all suspicion is cleared away and
plenary evidence adduoed Of fairness, and knoEl-
edge Of the contents. The Court reversed that case
because the courts below charged that previous dec
larstions in conformity with the will were insult
oient to establish the fact Of knowledge. Il vas
held, that this might or might nos be Sufficient,
but that was a question for the jury, and not the
Court. -. Fl. .sr...-- -. 20 ..--.
It was not for the Court to prescribe any partcu>
lar species or measure Of proof, but only that it
must be full and sufficient in the face Of the suspi.
cion against it. TO satisfy the mind that the testator
knew the contents, aud was in no way imposed up
on In that ease, the most satisfactory evidence on
the point to be made out would certainly be the fact
that the testator had read heard another read the
paper But still the case may be made out By proof
as other facts. If then, the only ground Of objec-
tion WAS that the will was written by a beneficiary
under it, there would be in The charge Bat
suspicious and objections, against this will are aeeu
muated- The testatrix Wasillterate unable 10 read
or write, very old, kept secret what she had done
from AL the world except the witnesses who lived at
distance from the fsmly and in addition 70 al This
the paper was not prOpOuudsd for several years after
The death of the party, aud more than quarter Of
century after its date Certainly all these eircum-
stances combined should eDjOin upon the esuFt and
jury the necessity Of the stFetest scrutiny into fhe
facts and cause them to require The most satisfactory
and conclusive preof, not only that the contents
were perfectly understood bat that the Whele thing
was fair and honesL in every particular This should
have been emphaieally impressed upon the jury in
the charge But the particular question raised upon
the charge in the argument, is, whether any other
means Of knowing the contents Of the paper but BY
hearing il read, Will be sufficient in the Of
iliterats person. His Honor held that knOWledge
was sufficient no matter By what means acquired
that reading was not the indispensable and only
mode. In this case the only proof before the Jury
on the point in question was that she said at the
time the paper vas witnessed BY the Larkins, that
she knew what it contained, and assigned reasons
for not permitting it to be read. She did not say
that she had ever heard Il read but only that she
knew its contents; how she obtained this knowledge
is no where disclosed. Whetherit was derived from
her son. the craftsmen and beneficiary, or from me
other purer and more reliable scarce is not diselos
ed. The jury should have bean told that such in
formation as that would not be enough to establish
the faot and If she relied upon that alone for the
knowledge she prtfessed to have Of the contents, Il
was not sufficient. Itis not commended that direct
proof that the paper was read TO her is necessary
but that the jury should have been instructed that
the proof must satisfy them that such the fact
ms cad Of this the Court held, in effect that the
reading was not indispensable, provided it appeared
10 their ssisfactiOn that she had knOWledge Of the
contents no mstfer how acquired Upon either
view the charge was imperfect this point il not
erroneous. For II knowledge acquired By any means
would do, the jury ought 10 have been carefully
guarded against placing any reliance upen Informs
tion obtained from the interested craftsman Of the
paper, as to the contents, and to have been admon
ished that the suspicious circumstances surrounding
the case eBj0iued il upon them TO be most rigid in
the Investigation Of The sources Of her kDOEledge,
and the satisfactory character Of the mode BY which
It was obtained Yet, there is ne request 10 thus
extend and amplify the charge We would not
upon that ground where there is no positive error
Of law in the proposition announced. We think
there is no iBheXible rule Of law that the knOWl-
edge Of the contents which is required to be esab-
lished in the case Of persOns VINO cannot read, OF
where the writer Of shs will gets large benefit
der IL, can only be derived from hearing the will
h. Taffh hrr1
evidence but sl that is necessary H. that il must
appear 10 the full and entire satisfaction Of the Jury
that the testaor fully understood and freely assent
ed 10 the provisions Of the viii The fact Is to
the kind and description Of proof may be made out
like any other disputed fact. But in case Of this
description the strength aud conclusive character
Of Il must depend upon the degree Of suspicion which
the circumstances are calculated TO excite and il
should be strong and convincing equivalent ct least