The Volcano lubricator. (Volcano, W. Va.) 1871-1879, 1874-03-19
VOLCANO WEST VA, THURSDAY MARCH 49, 1874.


Tie Almighty has not, indeed, given
to all alike in the matter 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 fol-
lowing maxim is quoted from writer
or great weigh! and authority, and is
CLEARLY IN point:
81 am monarch Of all I survey,
My right there is none to dispute"
(R. Cruso's Digest, vol. Z, page 956.)
BY right, here I1r. Cruso unques-
tionably means the right Of making
" ills. whether man has anything to
give or not.
We are next to consider what degree
of capacity is requisite to make will.
AS has been we'll remarked by Vattcl,
Pufendorf, and Ju6tinian. very small
infants, idiots, and madmen are con-
sidered incapable. The standard of
capacity for making wills is indeed
very low, being about the same as that
required to decide on their validity;
and here I cannot forbear to quote
from a recent decision of learned
brother in an eastern country: Every
oerson not embraced within either of
the above classes idiots, lunatics: or
persons non t5mbos mentis) 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 surrogate.
Married W omen were ancient!y re-
garded as incompetent to make testa-
mentary bequests; but their colnpe.
tency is restored by a recent statute in
these words:
"when she will, she will-you may depend
ont,
And when she won't, she %on't-sc there's
an end ont"
The idea of making will naturally
suggests the thought Of death, which
is BY no means pleasant. 1t is claimed
here that by act ofmaking a will a man
contracts to die; and that he lives, in
violation Of this implied promise, he
is guilty of a fraud, and is estopped to
oppose the probate of the will tSee
Grotius and Pothier on a stopple.l
For him to do so would be ito take
advantage Of his own wrong" which,
as my Lord Mansfield suggests, is "a
dodge not. t..Sanc,ioned BY the law" l
might also quote from Conlucius, So
lon, Lycurgus, Socrates, Hannibal,
and other learned Thebans, but for
the present l forbear. The remarks 1
have made above may not all be con-
sidered applicable to this case; but the
imperfect knowledge ofthe many" on
this subject will be, it is hoped, sufii-
cient excuse for them. Besides, we
are admonished by court whose au-
thority may be considered by some
higher than this, not ITO 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 illumine the surrounding dark
ness.
now propose to consider some Of
the other points raised in this case;
and,
I. Is the proof that the testator is
living sufficient to prevent the probate
OF the will? A6 has already been in
timated, the court would consider it
by no means clear that if the testator.
were proved to be living this would
defeat the will; for, as my late lamen-
ted brother Judge Story, justly remarks
(Eq. jur. sec. 81, g. "1n equity, that
is always considered as done which
manifestly ought to have. been DONE"
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 jurls-
diction he will therefore be considered
as dead. This, then, constitutes no
objection to the validity of the WILL
Besides, the only evidence produced
to prove that the testator is living is
the testimony of Peep himself. He is
clearly an interested witness, and
therefore incompetent. 1t is also
claimed that his testimony is rebutted
by an aA6i, to which proposition this
Court records its full assent.
?. Does the fact that the property
bequeathed to Smith did not belong to