, 1874-06-06
M'CORD.
Instructions for Both 9ides.

Ee0ka, returned n Fcrd1ct yoetefuaY morning
aftor being out twonty hours: " Tho Jury find
tho paper produced in evidence aa tim will Of
John McCord, deceased, not to 10 tho will Of tho
said John afcCort.'
THE WILL.
John ntcCord, tho toBtator, diod tho 1Bt day OF
March, 1879, leaving What purportea to DO will
duly executed and Witnessed, wi,orcin Potef ~
Yoo WIS namea executor, mud tho bulk OF tho
estate givon him. Tho will was proved woek
after AcCora'a death, and letters tostau1entary
granted to You. From this order Of probato'
Andrew AfcCord, ono Of tho hoirs of John
a1cCord, appealed to tho Circuit Court, and tho
caso hnB boon on trial over Two wooka. 4 lnrEo
amount Of Testimony was alducod, tho principal
claim of tho contestant bcing that tho toBtator
was improperly md unluly influenced by potor
T.. Yoo, md TINT, in addition, ho was not Of
sound mind Mt tho timo Of making this will.
Tho amount Of tho estate in question is about
ssoo,ooo, u largo part being productive rcal
estate in this city.
As tho caas is one of considerable Importance,
especially in ita legal aspect, as defining, by the
Instructions. !" "unduo influence " aud unsound
mind" wo gtvo full abstract OF the instruc-
tions OH each silo:
INSTRUCTIONS Fon CONTESTANT.
On tito part OF tho contestant. tho Judge
ohnrged tho jury that tho party propoupling n
will Ia bonnd to provo TINT the paper in question
doeH declare tho will OF the deceased, md TINT
tho tostator waH Mt the timo Of sound mind. Tho
Testimony Of tho subscribing .witnossoB is abso-
lutoy necessary. It must bo shown Tint tho
will WINS reduced to writing, signed BY two Wit
nessos, md they must tostify TINT they bofiovo
ho was sumo at the tiHe. It ia not sufficient that
u to8tator have 4 momory to answer usunl ai,d
familiar questions; 4o must have q dlsposing
frtA nfUf0 1F13
nnd reason. II McCord had not sound monl-
ory, nor sufficient mind to dispose Of his ostnte
with reason Or fixed Judgment, then the will IN
not admissible to probate: The hors can
and distributions. aud tnoir rights can only be d.
vested by party claiming under n will which
Inns been executed in accordance with law by a
tastator Of sound mind md memory. Though
tho Jury lnuBt weigh their evldonco, to SEQ If
they hive sufficient knowledge Of tho subject
n1attor to make them worthy of confidence. If
cithor Of tho witnesses ia not crodbo the will Is
not valid. II both the subscribing Witnesscs do
not testify that they bolioya heCord Has OF
Bound mind and mon.ory at tho timc OF tue oxe-
cution Of tho will, tho will muat not bc admitted
to probate.
1t is essential to tho aound mcmory required
Tint a tostator should have something moro tllan
passive monory. Ho must havo ! sufficiently
active memory to collect In his mind, without
prompting, partlculara OF olomonts Of
t2, .h9 bnulness to DO % transacted, md ,9 to
os oas ~ G Inn in nsraavo his II nS oss o ,eobt I
vious rolationH to zach ohor, aud DO ablo to form
some rational Judgment in relation to them, and
tho elomenta of such q Judgment include tho
numbor of his children, their deserts will, refer
onco to conduct and capacity, rs we'll as nocd,
and what lie Ind before done for t!lem relatively
to their condition and tho amount Of his properly.
It the will waa not tho result Of FREQ Judgment,
hut Of undue influence oxortod By some ono. i
L.. 81 -t.
dooB not cntitIo It TO probato. It must bo tie
teBtators net and decd, and If lo did not know
each aud NIL its provisions it ia not his will. Tho
executor need not prove the will Immediately,
oxorted exc ted such influence on nIccord'e mind.
LIN lin, as a''ea to prosont @ tic ea excrosa Of 'va
sound discretion, and to mako tho will
dliferont from what it would bavo boon had Nc
Coid boon loft In tho oxcrciso Of nlontal free
agency, thon tho instrument should not be nd
nlitted to probate.
ron TIE DEFENSE.
On behalf OF tho prepayment. P. L. Voc, tho
Judge charged that tho isauo in tho case was
whether tho writing produced was tho will Of
John AlcCord or not. To ontitlo will to pro-
bato, 1t ia sufficient to provo, first, that It was
reduced to writing and signed by the teatator, or
fion second. that it was atto.tel il, tic pres
euco Of tho testator by two credible witnessca
third, 1t must bo proved by tho witnesses that
they wore present, saw the testator Sign tho
will, hoard him Acknowledge it rs his net and
decd, and that thoy believed him to bo Of sound
mind and memory ut tho time. Tho words !" eredI-
bio witnesseH" " mean simply stcompoteut," stich
ns woro tts Witnesses to tho present paper.
! ltodfold III Wills, 253; 6 Alass., 30. 500.
of understanding required ID that tho toatator
Eh1uld be possosBol Of sound mind and memory,
i. O., that ho should not bo deprived Of reason,
nnd that he possess sufficient mind and memory
business in which ho was engaged at tho time 10
executed his will aud to comprehend what he
was doing, and to whom he WAS giving his prop
erty. It does not moan simply that tho mind
and memory m,lst be wholly unimpairod: II tho
testator WIS free from any Insane dclusion, and
retained intellect md memory enough to know
and appreciate tho nature md oxtent OF Ills
property, his relation to those who wero tho
natural objectn Of his bounty. md tho char
by hia will. 1t is sufficient. Noitier bodily in
1irmity, advanced ngo nor intellectual fcoblo-
moss. nor q failure Of momory not ontiro, IL SUIT
Hciont to disqualify. Memory ia o faculty Of tho
mind, by the mid Of which the past ia recalled.
ns to recall with common deGreo Of accuracy
past transactions, and FREQ from delllsion, 1t may
DO considered ao,ina, although it act slowly aud
foebly. It is not nocoaaary that tha tosthtor
will. The Testimony OF tho subscribing witnesses
is alone to be required in reference to tue
testamentnry capacity Of the teatator at tho time
OF the execution Of tho Will. The
relating to the health and mental capacity Of tho
testator. II to be used In connection with that
giyou by tue subscribing witnesses to enable a
better judgment to ho formed ct the condition
Of the teAsstor, and tho probability Of his being
The evidence in relation to undue influence Ia
of positive character, and must ho proved by
tho party asserting il. The evidence mus. alsow