The Baltimore County union. [volume] (Towsontown, Md.) 1865-1909, 1874-03-21

The following, from the Albany La0 Journal
purporting to be an opinion of a surrogate of
one of the northern counties of New York, and
written by distinguished lawyer of that State
is fine specimen of genuine humor:
Before Peter @. c. ShortmaD, surrogate. In
the matter of approving the last will and tesla
ment of Titus A. Peep.
Titus A. Peep, of Greenfat, Hamilton county,
is claimed to have made will, whereby he de-
vised to one John Smith property to the amount
of $40 900, consisting of water lots in Maumee
City. Smith comes before the surrogate to prove
the will and demand the property DEVISED
Counsel opposing probate show
l. That Titus A. Peep, the testator, is still
living, and in proof of this Peep himself is pro-
duced in court, and testifes that he is not dead.
2. That the title to the water-lots was never
in said Peep, and that he never had, or pre-
tended to have, any manner of claim to said
lots.
3. That the signature to said will is fol gerry !;
4. That there are no witnesses to the will
The questions before the surrogate, therefore,
are
|. Whether the will can be admitted to pro :
bate during the life of the testator.
2. Whether the devise of real estate never
owned by the testator is valid, and sufficient to
pass the title.
g. Whether the fact that the signature is
forged constitutes any objection to the validity
of the will.
4. Whether it is indispensable that the will
should be witnessed.
OPINION OF THE SURROGATE.
The devise of property by will is of great an
tiquity. Indeed, this method of disposing of
ones acquisitions is coeval with the existence
of the human race. Wills are still extant (be-
ing preserved in the British Museum-see cat
alogue of that institution which are said to
have been transmitted from the most ancient
nations. These instruments were very common
among the antidiluvians. Indeed, Blackstone
remaks that there is IN example of will in the
book of Genesis-and Blackstones authority on
that point must be held decisive. 1t is to be
regretted that the manuscript is lost, but proba-
bly, the will OF Adam is referred to by the learn
ed commentator.
Wills are also known to have existed among
the first settlers in Scandinavia, Assyria, Greece
and Rome. Indeed, the word itself may be
traced directly to the Latin tongue. 1t is de-
rived from Volo. ",Slc Uolo, SIC ju6eo, Stet pro
yatione vofuntas" as Nero remarks in the Pan.
dects. My Lord Coke, in his Institutes, which
is work of high authority, uses the phrase
willy-nilly, which he derives from "nim and
dolP or "namby pamby." DR.. johnson made
some observations on this subject, but as this
court does not attach much weight to his au-
thority, it is not deemed advisable to quote
them. (See his works, London, ed, quarto.)-
Webster's definition of this word should be con-
suited by all who are DESTROYS Of understanding
its precise meaning. (See his great dictionary
of the English language, which contains 10000
more words than any similar work.) In Eng
lard, the time is not known, to me at all events,
when testamentary instruments were not recog
nized. Important changes have been made,
however, from time to time, in that kingdom,
on a variety of subjects. (See Hume's History
of England, volume 1st to last, inclusive.) 1t
is a question much discussed among jurists and
naturalsts whether testamentary requests be
a civil or natural right think there is much
to be said on both sides of this question. 1t is
certainly very civil proceeding toward those
to whom the testator bequeaths his property /;
and in this great and glorious Republic we all
hold it to be a natural right for every man, and
more especially for every free man, to do as he
d-n pleases both as to devising and inheriting
property. (See Declaration of Independence,
passim.)
N. B.-I use the word d-n not as q court,
but as an individual.
As has been before intimated, every man can
make will who has disposition to do so.-
And l can find no authority for requiring that
the testator should possess ything to bequeath.
This would, indeed, be making distinction be-
tween the rich and the poor, which would be
odious to every friend of freedom and equality.
(See Jefferson's Manual, vols The Almighty
has not indeed, given to all alike in the after
of worldly substance, but the glorious privilege
of leaving to his friends whatever he is obliged
to leave behind him belongs certainly to every
testator. The following maxim is quoted from
writer of great weight and authority, and is
clearly in point:
81 am monarch of all survey,
My right there is none to dispute"
Or. Cruso's Digest, vol. 7, page 953.)
.~l.G L l.
means the right of making wills, whether man
has anything to give or not.
We are next to consider what degree of ca
pacity is requisite to make will. As has been
we'll remarked by Vattet, Puffendorf, and JUS
tinian, very small infants, idiots, and madmen
are considered incapable. The standard of ca
pacity for making wills is indeed very low, be-
ing about the same as that required to decide
on their validity; and here cannot forbear to
quote from a recent decision of learned brother
in an eastern county: Every person not en-
braced within either Of the above classes idiots,
lunatics, or persons non compoS m,entiS) of law
full age is competent to make a will, be his I'M
derstandng ever so weak, and is also, will
venture to add, eligible to the office ofsurrogate.
Married women were anciently regarded as
incompetent to make testamentary requests J;
but their competency is restored by recent
statute in these words:
"When she will, she will-you may depend ONT
And when she won't, she won'tso there's an end ont"
The idea of making a will naturally suggests
the thought of death, which is by no means
pleasant. 1t is claimed here that by act of
making will man contracts to die; and that
if he lives, in violation of this implied promise,
he is guilty of fraud, and is estopped to op-
pose the probate of the will. (See Grotius and
Pothier on stopple.) For him to do go would
be "to take advantage of his own wrong"
which, as my Lord Mansfield suggests, is "a
dodge not sanctioned by the law" might also
quote from Confucius, Scion, Lycurgus, Socrates,
Hannibal, and other learned Thebans, but for
the present l forbear. The remarks l have
made above may not all be considered applica-
Bile to this case; but the "im perfect knowledge
of the many" on this bect will he, it is hoped
a sufficient excuse for them. Besides, we are
admonished by court whose authority may
be considered by some higher than this, not
"to hide our light under bushel." In accord
meet to remove the bushel, that its light, like
small city on great hill, may illumine the
surrounding darkness.
| now propose to consider some of the other
points raised in this case and,
l. Is the proof that the testator is living sufi-
cient to prevent the probate of the will As has
already been intimated, the court would con-
slider it by no means clear that if the testator
were proved to be living this would defeat the
will for as my late lamented brother, Judge
Story, justly remarks, (Eq. jur. sec. 81 go "In
equity, that is always considered as done which
manifestly ought to have been dore." Now, it
is clear from the testimony that the testator
ought to have been dead years ago. And this
being horse marine court with equity juris-
dction he will therefore be considered as dead.
This, then, constitutes no objection to the valid
ity of the will. Besides, the only evidence pro-
duced to prove that the testator is still living is
the testimony of Peep himself. He is clearly
an interested witness, and therefore incompe-
tent. 1t is also claimed that his testimony is
rebutted by proof of an abb, to which position
this court records it's full assent
2. Does the fact that the property bequeated
to Smith did not belong to the testator deprive
the deyises of his right of possession / hold
clearly not, for reasons already assigned.
4lau nkiIra