, 1874-04-02
LAW REPORT.

Since the departure of our regular
Law Reporter. that department of our
paper has been mainly abandoned; but
| the following. from the Albany La,o
Journal, is too good to be lost to our le-
gal readers:
Before Peter @. C. Shortman, Surro-
gate: In the matter of approving the
last will and testament Of Titus A. Peep.
Titus A. Peep, of Greenfat. Hamil-
ton County, is claimed to have made a
will. whereby he devised to one John
Smith property to the amount of $780,
600, consisting of water-lots in Maumee
City. Smith comes tefore the Surro-
gate to prove the will and demand the
property devised. Counsel opposing
probate show: 10 ,gpas.L
!. That Titus A. Peep. the testator. is
still living, and in proof Of this Peep
himself is produced in Court, and testi-
fed that he is not dead. haa
2. That the title to the water-lots was
never in said Peep, and that he never
had, or pretended to have, any manner
of claim to said lots. las ssfgsi.iY /.
8. That the signature to said will is
forgery; and, vrr-y5i W iaags. Of
4. That there are no witnesses to the
Will. .asea Il lol ,a13s I'll Boz
The questions before the Surrogate,
therefore, are: q; sraf
/. Whether the will can be admitted
to probate during the life of the testa-
tor. .ai 1a lsss aa g. a ga
2. Whether the devise of real estate
never owned by the testator is valid,
and sufficient to pass the title. aa
8. Whether the fact that the signature
is forged constitute any objection to the
validity of the will. moaiej 'l
4. Whether it is Indispensable that
the will should be witnessed.
OPINION OF THE SURROGATE,
. III I
The devise of property by will is Of
great antiquity. Indeed, this methed
of disposing of ones acquisitions is
coeval with the existence of the human
race. Wills are still extant (being pre-
served in the British Museum-see cata-
logue of that institution) which are said
to have been transmitted from the most
ancient nations. These instruments
were very common among the antedilu :
vians. Indeed, Blackstone remarks that
there is an example of will in the book
of Genesis-and Blackstone's authority
on that point must be held decisive. 1t
is to be regretted that the manuscript is
lost, but probably the will of Adam is
referred to by the learned commentator.
Wills are also known to have existed
among the first settlers in Scandinavia,
Asyria, Greece and Rome. Indeed, the
word itself may be traced directly to the
Latin tongue. 1t is derived from colo.
(" Sic uolo, sic jubeo, stet pro ratione Uola1a-
hs," as Nero remarks in the Pandects.
NV Lord Coke, in his Institutes, which
Is a work Of high authority, uses the
phrase willysnilly, which he derives
from "nun and dou''' or " namby PAM
by" DR.. johnson made some observa-
tions or this subject, but as this court
does not attach much weight to his au-
thority, is not deemed advisable to quote
them. (See his works, London ed,
quarto J Webster's definition of this
word should be consulted by all who
| are desirous of understanding its pre-,
else meaning. lSee his great dictionary
of the English language, which contains
thirty thousand more words than any
similar work. In English the time is
known, to me at all events, when testa-
mentary instruments were not recognize
ed. Important changes have been made,
however, from time to time, in That
kingdom, on variety Of subjects. (See
Hume's History of England, volume LIST
to last. inclusive.) It is question
much discussed among jurists and nat
uralists whether testamentary bequests
be 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 bequeath his property, and In
this great and glorious Republic we all
hold it to be natslal right for every
Ian, and more especially for every free
man, to do as he d-n pleases, both as
to devising and inheriting property
(Sea Declaration Of Independence, pas
sim.)
N. B.-I use the word d-n not as q
court, but as an individual. 2. A1.kf
AS has been before intimated, every
man can make a will who has DISPOSE
ton to do SO. And I can find no author
ity for requiring that the testator should
possess anything to sbequeath. This
would, indeed, be making q distinction
between the rich and the poor, Which
would be odious to every friend Of free>
dom and equality. tSee Jefferson 's
Manual, vol. 81 The Almighty has not,
indeed, given to all alike in the matter Of
worldly substance, but the glorious priv
ilege of leaving to his friends whatever
he is obliged to leave behind him be-
longs certainly to every testator. The
following maxim is quoted from a writ
er Of great weight and authority. and is
clearly in point: I, lga <. r.f..f.i,,.
1 am monarch Of sll survey,
Ny right there is none to dispute"
(R. Cruso's Digest. vol. /, page e53.)
By right. here Mr., Cruso unquestion-
ably means the right of making wills.