The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-11-09

on tne SUBJECT under consideration what
he said two centuries ago; and the
longer 1t has been considered In the
courts, the more firmly has it been es
tablished' until it has come to pass that
II 1s the accepted rule of the courts loi
england and America and wherever
the common law obtains. Now, to Illus.
rate this somewhat beg leave to read
though do not Intend to delay you by
unnecessary reading of books here
from the learned opinion of a first-class
Judge IN the court of appeals of New
York, In a case found in the 25th New
York reports. The Judge in delivering
his opinion in this case-Dela6ell ..
Parish, page 22-cites the statute OF
New York, which is substantially the
and of every State:
II Is provided by the statute law OF this
state, that "ail PERSONS, except tdkoES pefS0n,
q uns0ttlId igntlld, married women and in.
will and testament,n duly executeiS in ac-
cordance with the FoTmaiities prescribed by
law; and that "eVeFy male person OF the age
male not being a married WomHn, Of the aTe
OF Hxteen years and upwards of SolnId SyliSlo
I,sa 1.IIe'IsPTy md no Other, may give and be-
writing" :, : - - - va -
After citing the statute, the Judge
proceeds to speak of competency:
But competency to execute testament
9oes not exist, unless the alleged testator has
prshend such an act. 57s7lz s-l1f5Tf77
Which means of course to embrace
everything done by the act. fl5 q
In the Marquis OF Winchester Case it Is said
that Sby' law It Is not sufficient that the tes-
his will, TO answer familiar and usual ones
lions; but he ought to have n disposing niefn-
oTy, SO that he u able to make a disposition
of his lands with understanding and reason.
and that Is such a memory. which the law
calls sound and perfect mernory."f ~ III!
In the case of Mountain q. Bennett
which 1 may. be pardoned for remark
ing is the very case referred to by. the
honorable gentleman who will con-
c1ude the argument, In the course of
the controversy about the admissabili-
ty of the testimony of one of the wit
nesses-and which case / find in the
book his colleague has laid on the
table, find this paragraph, from
COx's reports-which they found it con-
Ventent not to read, for very manifest
reasons. In pronouncine the DECISION
OF the case, Lord Chief Baron AYR, de-
cided that In order to mental incapacity
u was not necessary the party should
be insane; and that, too, in the absence
OF any undue influence whatever. In
the Yllabus ofthe case made here, it is
stated that r-tn Ea .a,ii 20 .ilfI li
!" . The Lord Chief-Baron said: teTvo
things must be made out, in the flrst Instance
by those who support the WIll-the formaIity
OF the tnstrument and the sanity OF the per-
viii relies upon actual force being used III Don
the teStator, II is incumbent on him to show
which though not so distinct as that Of aot
tual force, nor SO easy to be proved, yet IL Il
ehould be made out would certainly DESTROY
any tPysoF pVey q mind Of stllcienf stIrtif0 o
ge1eEGi pplf ol stlgleislt S0UnCln ana
e ses 20 TSgSts .. hEs GgGIrS IN general yet
htDI as 20 prevent the eEerciSe of such CFfScTci0JI
fJIi'o1 5gott1a 0e e9gG sot M tt oI
No occasion for actual force. therel
The Judge discriminRtes expressly in
the passage I have Just read between
actual foHce and the mere exercise ibf
1nhuence over the mind OF the sup-
posed testator and he says that al
though the testatoF may possess suf--
nclenG sanity for general purposes, and
suthetent soundness and discretion to
regulate his affairs in general, yet, if
the intervening party acquires such
dominion or influence over him ms to
prevent the exercise of such discretion,
II you'd be equally Inconsistent with
the idea OF a dispostng mind. Gentle
men, stand on that authority here,
nowy-as'itw referred to in the npen-i
ing by the gentleman and 'abandonet
by him In conclusion,-as tnRintain-
ing the position I assumed at the out
set and that although the testamentary.
capacity of the supposed ctestatori for
general purposes Is admitted, yet II
the testimony in the case-foF which
You may search in The contents of the
wall itself, whichmay be aided by in
dependent facts proved by competent
testimony-it appears that a third per-
son INTERVIEWED, who acquired such
commanding influence oVerrthe mind,
efthe supposed testRtor as to interfere
NtEya Mt hi
discretion, 1t. is not his will: which
spstatns exactly to the letter, the re-,
marks made by my, learned friend who
concluded before the adjournment of
the Court, Mr.. Peck. 50 i7i7Efl
But read ft1rther: i '.i ~
Lord Kenyon, in addressing the jury in
9EeenWood .. Greenwood, says; ~ take it
mind and memory competent to dispose Of
his property, when 1t is n little ex plained 4
OF recollection about him that Would IisiSIf
MIN 70 look about the property he had to dis.
pose OF, and the persons to whom he wishes
moning up in his mind SO asto know what
ms property, was and who, those persons
ty, then he was competent % make his win -
IN MARSH Y. Iyrrel, that experienced and A
I iearned Judge Sir John Nicholl, said It Is
g great Out not uncommon error to suppose
that, because a person can understand a
question put to him, and can give a RATIONAL
mind, and is capable OF making q viii feSr any
purpose " WnateverS whereas the rule of law,
and IL is the rule OF common sel1se, ESJa5 Oh!
judged OF by the nature OF the act TO be done
fFom a consideration OF all tho cfrouhnst9nces
of the case. 10. I1p: 23L2l.
And this is somewhat in conflict-al-
low mel to say, in passing-Withi the re-
marks OF the learned gentleman who
opened the argument here for these pro-
ponents in behalf of this will, He
seemed TO thinks q man capable. of un-
derstanding his relation to an isolated
person and piece OF property was able
TO understand the relations he sustain
ed TO a large number Of parsons de-
pendent on his bounty equally well,
and able to comprehend alarpe estate.
In the language of this learned Judge.
common sense settles that point. If the
nature of the transaction was as conn
plicated as that within the Judgment
of the jury on the testimony In the
case 1t was beyond the clear and en-
tire comprehension of the testator, it Is
not his Will; because he must un1eF-
stand 1t, on all these authorities, before
he can make 1t. That is exacfiy,what
the Judge meanSs that'he mtlst.under-
stand the effect and purpose of the will
before he can make ftsai5
1 read further; and i read also again
from the decision of a Judge who're
hected, honor on his high opposition, and
who is often quoted in 5thes courts of
justice Erskfne. BE says In the case
Of HAYWOOD 2 Baker, In the 9Th Moore
S " "But their lordshIps are OF opinion
mind, q testat0f must not only Is able 10 uns
that he Is by his VIII Swing the
whole OF his property % one object OF his ne
gard, but that he must have nISo EApacifY to