The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1875-04-16

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ecsased.o THESE rules are approved oy
he courtin Cri.pell rs. Dubois q Baro. sup.
!. Rer., r.. 39Gl; also in Cramer Us. Crum.
,1ugh g Mar, land, suprd). In WATSON U.s.
Iorau g Bradf., supra the court says:
True, /. Is held that where the legatee VINO
tands in confidential relation TO Tue
esta,or himself draws the will this circuD.
.anoe calls Tor increased vigilance on palt OF
be court ia ascertaining
TIE VALIDITY OF TIE WILL.
r}ut in such cases the most that has peen
or ought to be required is satisfactory eV',
dence that the testator was of sound mind
and clearly understood the contents of the
will and was at the time under no restraint.
No case has gone so far as to over
throw will duly executed when it was
shown that The party executing IL was
of sound mind aud clearly understood us
contents, though it was drawn by the
person taking the estate" 1t seems TO me
that the rules and principles by which cases
of this nature should be decided are clearly
and correctly stated in the foregoing deci.
sions, aud they are sustained by the almost
unbrokes current Of huglish and American
authority. Let us aow apply them TO tne
case In HAND. - -:
Ia the first place, cannot doubt upon the
evidence in this record that John IL. oo1n'
son vas CAPABLE OF making will on the lo.h
day of February, 1867. when this VIII was
execnted. and Also when be executed the
codicil. on the 18th of June folio wing. Ioe
three subscribing witnesses, VINO are re-
earded in law az placed around the lestalor,
that no fraud may be practlced on MN IN tns
execution Of the will, and TO ascertain anu
Judge of his capacity, all of whom are repre-
senlcd to be men OF intelligence ana respect.
ability, were not only of that opinion (ana
the law makes their opinion evldence), put
;acts are proved by them and others when,
in connection with the intrinsic evidence
furnished by the instrument itself, excludes
all doubt that the testator was OF sounu, us
posing mind. IT,, +,
In The next place we will inquire, Had be
knowledge Of the contents OF the cooicil
when he signed it? Being capable oil
making will, it is not prob1ble
that he would have signed it with.
mt knowing what it contained. But the
nroof is positive and direct. 1t is proved
that the testator himself gave instructions
to Mr.. Bocock, which were written down by
him. and afterwards read over several times
| to the testator aud approved by him. The
codicil was then written, and Dir. Pankey
and Mr.. Agee, who, together with MIR.
Thornbill, had attested the will, and who
the testator desired should attest the codlcll,
were sent for. and one of them-Mr. Pan
kew. who had been justice OF the peace for
q number of yeirs--read it to him. The ties.
tator said he heard it. and we'll understood
| it; that he had beard it several times before,
and that it was written Is he directed.
| The proof is that
THE ooDICIL,
after it had been written out, had not been
before read to the testator, although the note
of instructions had. The fair inference from
| the lestator's remark that he had heard it
| several times before is that there was no dis
crcpancy between the note of instructions
and the codicil. And Mr.. Thornhill testitieS
that - all was read to Mr.. johnson in the
notes." and call was in the notes as it is in
the codicll." These two things being eStab.
| lished-frSt, that the teStaor was capable;
and secondly, that he had knowledge of tue
contests Of the instrument, and the execution
having been according TO the requirements
Of law, ordinarily, further proof would be
unnecessary TO establish the will. But this
case being Of the class which calls upon the
court to be vigilant and jealous 10 examining
| the evidence, and 10 be satisfied that the
paper propounded does express the true will
! of the deceased, which satisfaction cannot be
| felt whilst suspicion rests uDon it, We will
! further inquire, Was the teStator under re-
Strant when he executed this codicil!
A valid testamentarv disposition Of pro-
perty must be the voluntary act of capable
| teslator. In Wilson as. Moran, supra, the
| court said "a will by a client in favor of
an attorney is not absolutely invalid. The
existence of that tiduciary relation does not
annul the act, but still the circumstances call
| for unusual crcumspection and vigilance to
see that it was ia consonance with the rie,rS
and ,rishes of the testator." Baron Parker
aifirms, in Barry as. Butl,n Il Curt, $50,
that ul that can be truly said Is that ifu person,
whether attorney or not, prepares will with
legacy TO himself it is at most SUSPICIOUS
circumstance, OF more or less weight accord
iug to the facts OF each particular case /; in
some, of no weight at all, varying &C.
ceroing to the circumstances; for in-
stance the Qudntum Of the legacy and
The proportion it bears to the property dis
posed of, and numerous other contingencies;
out in no case amounting to more than cir
runstauce of suspicion, demanding the vig.
lint care and clrcumsp cction of the court in
OF to grant probate without fun and entire
satisfaction that the instrument did express
The real intentions of the deceased.
THE ouANTCM OF THE LEGACY
aud the proportion it bears to the property
disposed OF, according TO this authority, Il
uutavoluble to this will. But it is still only
! circumstance OF suspicion, which calls for
vlgiIant care and ciIcumspectlon. The turn
lug point is, Does the instrument express the
real intentions Of the deceased! The same
principle is sanctioned and acted on in Baker
rs. Bout, 2 Moore, 2. G. c., 3l7. And IN the
subsequent case OF During rs. Loreland z
Curt, 225. 227) Sir II. Jenner Furt, refer
ring to these passages IN the Judgment oil
Baron Parker. said he acceded TO every one
of the doctrines and principles there laid
down, but was not aware that the preroya-
tive court had ever acted on any other or
different. And they are recited by Judge
LonaX in his book on executors without
dissent.
No presumption can be raised against
the will or codicll in this case
from the fact that stranger is
preferred to bis lawful kindred when
the facts certified in the record are examined.
TIE collation. WAS one or hostility; and tue
he>tatGr had long before formed the fixed
aud ilut-xibe purpose that his relations
SHOULD have no part Of his estate; which
purposes: does not appear that he ever aban.
.aoued to lhe day O! MS death, though be
tsoueht at one lime Of making Il small legacy
to each Of :%o sisters By the will which
WAS written Tor him ia 1859 by his then
attorney (Mr. William d CabeD he left them
no.IAg.
The evidence also cletsiy shows that he