The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-11-09
MHEELlNG WEST-YAs FRIDAY o 1866


I" aHe must, in the language OF tbe
law, have sound and dlsposinR mind and
memory. In other words, he ought to be a.
pahle OF making his will with an understand.
/ y engagedi 2 collectiOn Of the property he
means to dispose of; of the persons who are
/ tne OBJECTS OF his bounty and the nnhnner n
Is to be distributed between fheIn.n - -
IN Den .. johnson, e Southland r. 45il the
Shiet Jnstee; IN charging the jury on this
ory Is a mind and memory which has the
| capacity OF recollecdng, discerning, and feel
tIES,y,S St q, e9nnsettons and obllga-
| been sometimes said, as had been stated, from
the books, that.if one. could correctly tell his
for food, Il Is sufficitnt evidence of a dispos.
Ing mind; yet such aytngs, though they show
that TIS are not Ighty 70 be set aside 81
have but little weight with rational me IN.
| Ye9ugHtlng the truth upon their oafl1s; that
that the mental powers of the testatrix We're
SO taF enteehled and broken as that she could
het MAKE a discreet 9 Of her aair.
| by other persons, and only assenbed to by her,
upon being asked, without tho power OF I'M!
the plaintt that Is, that It was not Of her viii. iii
I-Ib. p. q. y 7i1''i'I III ''ftt
And SO might read at great length.
further; but this isyenough for my pur.
pose, and for the purposes of this case,
i ask you to bear in mind the suggeS-
/ Il
have just read, !" that the protection Of
the law Is in no cases more needed than
It Is in those where the mind has he
come too much enfeebled to compre-
hend more objects than one, and most
especially when that one object NAV be
SO forced upon the attention of the in
valid as to shut out all others that
might require consideration; andthere-
fore the question" In this case is, not
whether the testator knew he was Civ
ing all his property to one person, ttand
excluding all his other relations from
any share in 1t; but whether he was at
that time capable of recollectine who
those relations were, of understanding
their respective claims upon his regard
and bounty, and of deliberately f0TIlin0
an intelligent purpose of excluding them
from any share o his pToperIy." think
have read enough to satisfy You
by this time, that although party may
nave an understanding of the transac-
tons of his ordinary business, vet If he
has not sufficient mental understand
ing to summon up in his own memory,
without the intervention of third per-
sons (in the language Of the books, "to
comprehend perfectly the condition of
his property, his relations to the per-
sons who were, or should, or might
have been the objects of his bounty.
and the scope and bearing of the pro-
visions of his will. He must, in the
language of the cases, have sufficient
GcttOe memory to collect in his mind,
tDtttottt pTonlpting, the particulars OF
elements of the business to be transact
ed, and 70 hold them IN his mind a spf6-
cient length of time to perceive at least
their obvious relations to each other.
and to be able to form some rational
JItdgnleHt in relation to them," TRed-
field p. 130, Stewart D. Ltspen6rd.l J
and understand as we'll the nature Of
the paper itself, and the distribution
which 1t is making OF his estate, he can
not makes awill. Hemust have the "dis-
posing memorY,n spoken of by Lord
Coke,-apd defined by Reddeld to mean
Zone. thatlis capable of presenting to
the stestathr all his property and all the
persons who como reasonably within
the range of his bounty" .s,Er-, .5,F
JUDGE KBNNoN,s opposing counsel,
interruptlng-Supposing he should for
get WRtch2ln n 'sigisfi-'Fss7 4g :. g-u r
Mr.. BINaHAM-The gentleman saws.
supposing he should forget his watch /
That does not touch the question L have
been arguing here to might; but 1t en-
ableS me to anticipate the only argu-
ment which can be addressed to a Jury
In order to affect the force of what I
have said. 1t is not a question whether
he forgets an unimportant item of his
property. 1t is a question whether he
was able to summon before his mind,
without the intervention of third per-
sons, those who were the objects of his
bounty and care, who had claim upon
his consideration and NATURAL affection:
and whether he was able also, at the
same time, to summon before his mind,
without the aid or Intervention of third
persons, "all his property" in the lam
guage of the court L have tttst read
In the language of the books, OF
forming n just and rational iconcep!
ton of the vnlue' of that property !:
and finally of showing a capacity
to summon, before ,I his mind
those who had claims upon his bounty.
and to understand thenature of the dis
tributton' which by the instrument Just
signed was being made2of that proper
ty. Because, that is tho language of the
law have read. 1 admit, though. as
the gentleman asked the qnestion-and
II Is but. courtesyI should answer, it,
that am not weak orfoOlish enough to
stand before court or anybody else,
and say that because1a a man inadYer-
tently overlooked his watch, his will is
to be set aside Il has nothing at all to
do with this question. Whether this
gentleman had that capacity orlnot is
to be settled by the testimony in the
case; and in settling this question you,
may look for testimony into the con-
tents of fthe'paperitself.f One usual wav
of showing the capacity of the testators
and it Is q very conclusive way-is to
show that he himself without the inter-
vention of u third person gave the i'm
Structtons to The scrivener for his will
Before i reach that point, however, Z
choose to speak of the paper itself, in,
inquiring into this question whether
upon the evidence 1t appears that DAN
iel Steenrod was oftestamentary, capac-
ity on the 22d day of November, 1852
when he put his name to that paper.
There is an extraordinary provision.
gentlemen, in this will that ought, /
think, to awaken the jealousy of every
juror and every tribunal of Justice that
has anything whatever TO do with this
paper. 1t becomes these gentlemen TO
throw some light on the question. When
the paper on its face contains q proyi-
sion of the sort, and creates, in the Lam
guage of the law, q suspicion OF its va
Hdity, the burden OF proof is on
them to explain it; and yet, sir, not one
syllable of testimony has dropped from
the lips of mortal man on that subject
In this trial. And that is the provision
Incorporating into the. original text of
this Will-4the. original notes delivered
by this old man, staggering under the
scrivener having been brought up, as
appears by the testimony of his dauRh-
ter-in-laWt Mrs Eliza ar fSteenrod, for
the purpose0f being the mere hand 10
deliver. over 70. the scrtvener what the
son-tn-lAw had prepared for his own
beneiit-thRt the bequestS he had made
in that will are to fall except upon the
condition that the recipients OF his
bounty, ding to the PROV sion, shall
release-wha Why Shall release all
claim which they have, all title, inter
est or estate in or to all the different
pieces OF property which are therein de-
YfsFd. j desire TO rauCi that prC1viRfnn or