The Democratic advocate. [volume] (Westminster, Md.) 1865-1972, 1874-05-16

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quests but their competencyis restored
by recent statute in these words
when she will. she wili--you may depend ont.
and When she won't she wont-so there's ian 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 win man con
tracts to die; and thar if he lives, ia yio-
laiion Of this implied promise, he is guilty
Of a fraud, and estopped to oppose the
probate Of the will. [see Groiius and
Pothier on stopple.] For him to do so
would be "to take advantage Of his own
wrong" which as my Lord Mansfield sug-
gests, is "a dodge not sanctioned by the
law ! might also quote from Confueius,
Scion, Lycurgus, Socrates, Hannibal, and
other learned Thebans, but for the present
] forbear. The remarks have made
above may not all be considered applicable
to this case; but the imperfect knowI-
edge of the many" on this subject will be,
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 a bushel." In accordance with
this suggestion, the court has thought
meet to remove the bushel, that its light
like small city on great hill, may ilIu
mine the surrounding darkness.
now propose to consider some Of the
other points raised in this case and,
/. Is the proof that the testator is liv
ing sufficient to prevent the probate q
the will? As has already been minated
the court would consider it by no mean
clear that If the testator were proved t,
be living this would defeat the will; for
as my late lamented brother Judge Story
justly remarks Eq. jur. sec. 81, g. III
equity, that is always considered as don,
which maniiestly ought to nave been done.
Now, it is clear from the testimony tina
the testator ought to have been dead year
ago, And this being horse marine cour
with equity jurisdiction he win therefor
be considered as dead. This, then, con
stitutes no objection to the validity Of III
viii. Besides, the only evidence produce
to prove that the testator is still living
the testimony of Peep himself. He
clearly an interested witness, aud there
fore incompetent 1t is also clainied tia
his testimony is rebuttcd by proof of a
alibi, to which position this Court record
its full assent.
2. Does the fact that the property b,
queathed to Smith did no; belong to tn
testator deprive the devise of his right {
possession ! hold clearly not, for re.
sons already assigned.
3. Is the circumstance that the sign.
ture is conceded to be forgery vail
objection TO the will? After prett
thorough investigation | have come to ii
conclusion that it is not. l ground m
opinion upon the authority of Mr.. Justic
Story, cited under the first point.
! In accordance with this principle it wi
not sufficient to prove that Peep did nc
sign the will. II should also have bee
shown that he ought not to have done $,
So far, then, | find nothing to prever
Mr.. Smiths taking the property. Blu
greatly to my regret (for | have great r,
spect for the family of which his illustr
Gus name shows him to be member, ii
last objection is fatal one There wei
no witnesses. The statute provides tbs
there should be. John Smith can't hay
them water-lo,s, and decree must be Ell
tered to that effect
| The costs must be paid by the man VIII
owns the property desi ed, for do not fiu
that any other Of the parties have any.
| do not think that there has been an
fraud in this matter. The forgery of Ii
testator's signature is, indeed, wrappc
in mystery" but cannot suspect thu
any Of my fellow-citizens, to whose suffri
ges am indebted for all | possess an
almost all ! know would be guilty ,
doing any wrong in the premises.
PETER Q. G. SHoRrMAN,
Surrogate, Greenfat, Hamilton count,