Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1875-03-27


incompetent to make ;e.tameuiary bequests;
bat their competency is restored ly recent
statute in these words;
when she will she wil-yon may depend 90
when she won't she won't-so there's 40 '1- o't
The idea If matiug will naturally sag
rests the thought Of death, which is by no
means pleasant. T, is claimed here that by
making a will man contracts to die; and
that If be lives. IN violation q this implied
promise he is guilty Of fraud, aud is estop-
ped to oppose tic probate Of the will. lSeo
Gro,ius aad Pothier on a stopplel For bIm
10 do so would be E" to take advantage oi his
own wrong" which, as my Lori Mansfield
suggests. is a dodge not sanctioned by The
law" might also quote from Confucius,
Solon. Lycurgus, Socrates, Hannibal, and
other learned hebans, but for the present
lorbear. Tie remarks have made above
nlay not at all be considered applicable to this
case; but the " imperfect knowledge OF The
many on this subject will be, il Is hoped,
sufficient excuse for them. Besides we are
admonished by court whose authority moy
be considered by some higher than ours not
10 hide our light under bushel." In ac-
cordance with this suggestion, the court has
thought meet 10 remove the bushol. that as
light, like a small city on great hill, may
iumine the surrounding dArkuoss.
now propose to consider some Of lhe other
points raised in this case; and,
l. Is the proof that tic tcstalor is living
sufficient to prevent the probate Of the viii?
As has already been intimated, the court
would consider it by no means clear that iftho
tesiator were proved to be living this woul de-
feat the will for, as my late lamentod broth
er. Judge Story Justly remarks (EQ jur sec
Z 81, q "ln equity, that is always consider
ed done which mauifestly ought to have been
done" Now, it is clear from the testimony
I that the testator ought - have been dead
/ years ago. And this being hoFse-marine
court with equity jurisdiction he will there
/ f1re be considered as DEAD. This, then, con-
I eululcs 10 otilcAiVh 1" VIC f'i''''9 '' '''~ "''
Besides, the only evidence produced to prove
that tho tcsiator is still living Is the testimony
Of Peep himself He is clearly 40 Interested
witness, and therefore Incompetent Il Is also
claimed that his testimony is rebuitcd ly
proof of an dlaJi, to which position this court
records It's full assent.
.. Does the fact that tic property be-
qea,hcd to Smith did not belong TO the testa-
tor deprive the devise Of his right Of possess
ion2 hold clearly not, for reasons already
assigned.
3. Is the circumstance that The signature is
conceded to be forgery a valid objection TO
tic will? After pretty thorough invesiiga-
ton. have come 10 the conclusion that il is
not, ground my opinion upon the auihoFi-
ty Of Mr. Ju. iico Story, cited uuder the irt
point.
In accordance with that principle It was not
sufficient to prove that Peep did not sign tho
will. It should also have been shown that he
ought not 10 have done 50. SO hr, then, |
cad nothing 70 prevent Mr. smith iahlnS
the property. But, greatly to my regret llor
have great respect for the family Of which
bis iluslrous name shows him to be a mem
bcr,) the last objection is a fatal one: There
were no witnesses The statute provides that
there should be. John Smith can't have
them water-lois aud decree must he entered
TO that effect
The costs must be paid by the man who
owns the property devised, for | DO not fnl
tha, any Of the other parties have any.
DO not think there has been auy fraud IN
this matter. The forgery Of the tesiators
signature is, indeed, wrapped in mystery.
but cannot suspect that any Of roy fellow
citizens, to whose suarages | am indebted foF
"all possess aud almost all | know, ," would
be guilty Of doing any wrong 10 tbo premises.
PETER Q G. SHoRTNAS.
Surrogate. Grecufat, Hamilton county.