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


quests; but their competency.is restored
by recent statute in these words
when she wIll she wiIi--you may depend ont,
And when she won't. she won't-so there's an end
on'ts
The idea of making will naturally
suggests the thought Of death, which is
BY no means pleasant. Il IS claimed here
that by act Of making will man CON
tracts to die; and that il he lives, in yio-
lation Of this implied promise, be is guilty
Of fraud, and estoppcd 10 oppose the
probate Of the viii. [see Grotius and
Pothier on a stopplc-l For him to do 50
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 Confucius,
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 knowl-
edge Of the many" sal this subject will be,
il is hoped, sufficient excuse for them,
Besides, we are admonished by court
whose authority may be considered BY some
higher than this, not 80 hide our lizhi
under 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 illu
mine the surrounding darkness.
now propose to consider some of tn,
other points raised in this case and,
/. Is the proof that the testator is liv
ing sufficient to prevent the probate O
the will? As has already been intimated
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, q III
equity, that is always considered as don
which maniiestly ought to have 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, cor
stitutes no objection to the validity of th
will. Besides, the only evidence produce
to prove that the testator is still living
the testimony of Peep himself. He
clearly an interested witness, and ther,
fore incompetent. 1t is also claimed ths
his testimony is rebutted by proof of a
dliJi, to which position this Court record
its full assent.
2. Does the fact that the property b,
queathed to Smith did not belong to tn
testator deprive the devise of his right +,
possession2 | hold clearly not, for re.
sons already assigned.
3. Is the circumstance that the Sign
ture is conceded to be a forgery vail
objection to the will2 After pTctt
thorough investigation have come to ii
conclusion that it is not | ground m
opinion upon the authority Of Mr.. Justic
4
Story, cited under the first point
In accordance with this principle il wi
not sufficient to prove that Peep did u,
sign the will. II should also have bee
shown that he ought not to have done s
So far, then, find nothing TO prevel
Mr.. Smiths taking the property. Blu
greatly to my regret (for / have great n
spect for the family of which his illustr
Gus name shows him to be member, Il
last objection is fatal one There WEI
no witnesses. The statute provides thl
there should be. John Smith cant la,
them water-lots, and decree must be el
tered to that effect.
The costs must be paid by the man WI
owns the property dcsi ed, for do not fr
that any other Of the parties have any.
| do not think that there has been an
fraud in this matter The forgery Of Il
tessator's signature is, indeed, wrappt
in mystery but | cannot suspect tn
any of my fellow citizens, to whose suifr
ges am indebted for "all ! possess an
almost all | know" would be guilty
doing any wrong in the premises.
PETER Q. c. SHoRrxAS,
Surrogate, Grcenfat, Hamilton count,