, 1874-04-02

Idiots, lunatics, or persons non compos
nsentis) of lawful age is competent to
make will, be his understanding ever
SO weak, and is also, will venture TO
add. eligible to the Office Of surrogate.
Married women were anciently re-
garded as incompetent to make tesla
mentary bequests; but their competency
is restored by recent statute, in These
words:
"when she will, she wiI1-you may depend ont.
And when she wo0't, she won't-so there's an
end ont"
The idea of making will naturally
suggest the thodght of death, which is
by no means pleasant. It is claimed here
that by the act Of makinga will . man
contracts to die; and that if he lives. in
violation of this implied promise. he is
guilty of a fraud. and is estopped 70 OPP
pose the probate of the will. See Gro
thus and Prothier on stopple. For
him to do SO would be " to take advan-
tage of his own wrong.'' which is. as my
Lord Mansfield suggests. 50 dodge not
sanctioned by law" I might also quote
from Confucius, Scion, Lycurgus. Soc
rates, Hannibal, and other learned The
bans. but for the present I forebear.--
The remarks I have made above may
not all seem applicable to the case; but
the imperfect knowledge of the many on
this subject, will be, it is TO be hoped. q
sufficient excuse for them. Besides, we
are admonished BY Court whose au-
thority may be considered as some high
er than this, not :" to hide our light un-
dera ibushel. In accordance with this
suggestion, the Court has thought meet
to remove the bushel, that its light, like
small city on great hill, may illumine
the surrounding darkness.
Inow propose to consider some OF the
other points raised in this case; and
1. Is the proof that the testator is liv-
ing sufficient to prevent the probate of
the will? As has already been intimat-
ed, the Court would consider it by no
means clear that if testator was proved
to be living this would defeat the will;
or, as my late lamented brother Judge
Story justly remarks (Eq. jur. sec. 81
g.>; In equity. that is always consid>
cred as done which manifestly ought to
have been DONE" Now, it is clear from
the testimony that the testator ought te
have been dead years ago. And this
being a horse marine Court with equity
in, isdiction, he will therefore be consid-
ed as dead. This then. constitutes no
objection to the validity of the will. Be-
sides, the only evidence produced to
prove that the testator is still living is
the testimony of Peep himself. wio is
clearly an interested witness.ard there
fore incompetent.
2. Does the fact that the property eb-
queathel to Smith did not belong to the
testator, deprive him of his right Of pos
session. I hold clearly not, for reasons
already assigned.
g. Is the circumstance that the sigma
t Ire is conceded to be forgery valid
objection to the will? After a pretty
thorough investigation I have come to
the conclusion that it is not. I ground
my opinion upon the authority of Mr..
Justice Story.
So far then, find nothing to prevent
Mr.. Smith taking the properly. But,
greatly to my regret, for I have great re-
spect for the family of which his illustri-
name shows him to be member, the
last objection is fatal one: There were
no witnesses. The statute provides
there should be. John Smith can have
them water-lots, and a decree must be
entered to that effect.
The costs must be paid by the man
owning the property devised, for do
not find that any other of the parties
have any.
do not think there has been any
fraud in this matter. The forgery of the
testator's signature is, indeed, wrapped
in mystery, but cannot suspect that
any Of my fellow citizens, to whose suf-
ffages l am indebted for all possess.
and most all know, would be guilty of
doing any wrong in the premises. . !.
PETER @. C. SHoR1MAN.
Surrogate, Greenfat, Hamilton Co. :