Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-03-15
HUMORS OF THE LAW.
A First-CIass story about a Decision
Of Doubtful Authority.

A First-Class story about a Decision
of Doubtful Authority.
The following, from the Albany Lat0
Journal, purporting to be an opinion of
a surrogate of one of the northern coun-
ties of New York, and written by dis
tinguished lawyer of that State, is a
fine specimen of genuine humor:
Before Peter Q. G. Shortman, surro-
gate: In the matter of approving the
last will and testament of Titus a.
Peep.
Titus Peep, of Greenfat, Hamilton
county, is claimed to have made viii,
whereby he devised to one John Smith
property to the amount of 500, 900, con-
sisting of water-lots In Maumee City.
Smith comes before the surrogate to
prove the will and demand the property
devised. Counsel opposing probate
show:
l. That Titus A. Peep, the testator,
is still living, and in proof of this Peep
himself is produced in court, and testi-
fies that he is not dead.
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.
8. That the signature to said bill is
a forgery; and
4. That there are no witnesses to the
Will.
The questions before the surrogate,
therefore, are:
l. Whether the will can be admitted
to probate during the life of the test
ator?
2. Whether the devise of real estate
never owned by the testator is valid,
and sufficient to pass the title.
3. Whether the fact that the sigma
ture is forged constitutes any objection
to the validity of the will.
4. Whether it is indispensable that
the will should b witnessed.
OPINION OF THE SURROGATE. d.
The devise of property by will is of
great antiquity. Indeed, this method
of disposlng of ones acquisitions is
coeval with the existence of the human
race. Wills are still extant being pre-
served In the British Museum-seec cat
alogue of that institution which are
said to have been transmitted from the
most ancient nations. These instru-
ments were very common among the
antidiluvians. Indeed, Blackstone re-
marks that there is an example of a
will in the book of Genesis-and Black
stones authority on that point must
be held decisive 1t is to be regretted
that the manuscript is lost, but prob
ably the will of Adam is referred to by
the learned commentator.
Wills are also known to have existed
among the first settlers In Scandinavia,
Assyria, Greece and Rome. Indeed,
the word itself may be traced directly
to the Latin tongue. 1t Is derived from
volo. "Sic Uolo, sic jabeO, stet pro rd-
tione voluntGs," as Nero remarks in the
Pandects. My Lord Coke, in his In
stitutes, which is a work of high au-
thority, uses the phrase willy-nilly,
which he derives from min and doll'
or mandy pamby." DR.. johnson made
some observations on this subject, but
as this court does not attack much
weight to his authority, it Is not deemed
advisable to quote them. (See his
works, London ed, quarto.) Webster's
definition of this word should be con-
suited by all who are DESTROYS of under
standing its precise meaning. (See his
great dictionary of the English Ian
guage, which contains $4,000 more
words than any similar work. In En-
gand the time is not known, TO me at
all events, when testamentary instru-
ments were not recognized. 1mpor-
tant 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) 1t is a question much dis
cussed among jurists whether tesla
mentary requests be a civil or natural
right. l think there is much to be
said on both sides of this question. 1t
is certainly very civil proceeding to-
ward those to whom the testator be-
queaths his property; and in this great
and glorious Republic we all hold it to
be natural right for every man, and
more especially every free man, to do
as he id pleases both as to devising
and inheriting property. (See Decla-
ration of Independence passim.)
n. B.-I use the world d-n not as a
court, but as an individual.
As has been before intimated, every
man can make Will who has dispo-
sition to do so. And I can find no
authority for requiring that the tesla
tors should possess anything to be-
queath. This would, indeed, be max
ing distinction between the rich and
the poor, which would be odious to
every friend of freedom and requality.
| (See Jefferson's Manuel, vol. 81. The
Almighty has not, indeed, given to all
alike in the matter of worldly sub
stance, but the glorious privilege of
leaving to his friends whatever he is
obliged to leave behind him belongs GER
tainly to every testator. ThefOllowing
NAHUM iSquotedfrom writer of great
weight and authority, and is clearly in
point:
dam monarch Of all I survey,
My right there is none to dispute"
(R. Cruso's Digest, vol. 2, page 953).
By right, here Mr.. Cruso unques.
tionably means the right of making
wills, whether a man has anything to
give or not.
We are next to consider what degree
of capacity is requisite to make a will
As has been well remarked by Yattel
Puffendorf, and Justinian, 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 cannot forbear to quote from
a recent decision of learned brother
In an eastern county: Every person not
embraced within either of the above
classes Idiots, lunatics, or persons non
compos meHtis) of lawful age is compe'
tent to make a will, be his understand
ing ever as weak, and is also. vii
venture to add, eligible to the Office Of
surrogate.
Married women were anciently re
J garded as incompetent to make tesla