Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-03-15

mentary requests; but their competen-
cy is restored by a recent statute IN
these words
s'when she viii, she will-you may depend on !,
And when she won't, she won't-so there's an
end ont it."
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 a will a
man contracts to die; and that If he
lives, in violation of this implied prom
Use, he is guilty of fraud, and is estop-
ped to oppose the probate of the Will.
See Grotins and Pothier on stoppleI
For him to do so would be Ito take adj
vantage of his own wrong" which, as
my Lord Mansfield suggests, IS "a
dodge not sanctioned by the law L
might also quote from Confuclus,
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 sim
perfect knowledge of the many" on
this subject will be, it is hoped, suffi-
cient excuse for them. Besides, we
are admonished by court whose au-
thority may be considered by some
higher than this, not ''to hide our light
under bushel." In accordance with
this suggestion, the court has thought
meet to remove the bushel, that its
light, like a small city ON great hill,
may iliumine the surrounding darkness.
now propose to consider some OF
the other points raised in this case ;
and,
l. Is the proof that the testatOr is
living sufficient to prevent the probate
of the will? AS has already been inti-
mated, 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 lamented brother,
Judge Story, justly remarks (Eq. jur.
sec. 81, g.:) I'm equity, that is always
considered as done which manifestly
ought to have been done" Now it is
clear from the testimony that the tes-
tator ought to have been dead years
ago. And this being a horse-marine
court with equity jurisdiction 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 still living is the testimony
of Peep himself. He is clearly an in
terested witness, and therefore incom-
petent. 1t Is also claimed that his tes-
timony is rebutted by proof of an abb,
to which position this court records its
full assent.
2. Does the fact that the property
bequeathed to Smith did not belong to
the testator deprive the devises of his
right of possession? Ihold clearly not,
for reasons already assigned.
3. Is the circumstance that the sig
nature is conceded to be forgery
valid objection to the will? After a
pretty thorough investigation / have
come to the conclusion that it is not. l
ground my opinion upon the authority
of Mr.. Justice Story, cited under the
first point.
In accordance with that prin iple it
was not sufficient to prove that Peep
did not sign the viii. 1t should also
have been shown that he ought not to
have done so. So far, then, find
nothing to prevent Mr.. Smiths taking
the property. But, greatly to my re-
greet, for l have great respect for the
family of which his illustrious name
shows him to be a member the last OBJ
lection is fatal one: There were no
witnesses. The statute provides that
there should be. John Smith can't
have them water lots, and decree must
be entered to that effect.
The costs must be paid by the man
who owns the property devised, for do
not find that any other of the parties
have any.
1 do not think there has been any
fraud in this matter. The forgery of
the testatOr's signature is, indeed,
wrapped in mystery" but l cannot
suspect that any of my fellow citizens,
to whose suffrages am indebted for
AL l possess and almost all l know, |"
would be guilty of doing any wrong in
the premises.
PETER Q. G. SHoRTMAN,
Surrogate, Greenhat, Hamilton county.