The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1876-01-28

4
cordance with the requirements Of the
statute. Upon appeal to this court, the court
held, Judge Staples delivering the opinion /:
| capacity the question always is. had the
testator dIsposing mind and memory? Al
! though he may have been incompetent to
make valid contract, yet II be had capacity
| to know his estate, the object of his bounty,
| be established. Second. That in considering
testamentary capacity the mere opinion Of
witnesses, unless they are experts, ought
and juries. A person signing his name
attestation solemnly testifies. the sanity of
the testater. If he afterwards attempts to
impeach the validity of the. will his evi-
dence is not to be positively rejected, but to
be received with the most scrupuIous jeal.
ousy. Third. That In considering ques-
tions of testamentary incapacity it Is always
important to look at the dispositions con-
tanned in the will. IF these be consistent
with the situation of the testator, and in con-
formity with his affections and previous dec
larations,-if they be such as might be ex-
pected from one in his situation-this of
itself is regarded as persuasive evidence of
testamentary capacity. Fourth. That the
juries are justly regarded as proper judges
Of the proper weight and credit due the
testimony of witnesses, and their verdict,
when sanctioned by the judge who heard
the evidence, ought never to be disturbed
In an appellate court, unless in case of
plain deviation from the proofs. Tested
by these principles, there is no doubt upon
the question Of testamentary capacity.
Here the judge entered into review Of
the evidence bearing upon the capacity of
the testatriX TO make valid will and testa-
ment.
TIE NEXT QUESTION
considered by the Judge was whether the
will was subscribed by the witnesses in the
presence of the testatrix. Upon this point
the authorities were reviewed and discussed
at considerable length, and the following
principles deduced: That 1t is not necessary
that the will shall be subscribed by the wit
nesses in the same room, or even in the same
house, with the testator. The question all
ways is whether the act of subscription took
place in his presence. 1t is not necessary that
be saw the witnesses sign. All that Is essen
! tial Is that he might have seen them If he de-
sired so to do. When the witnesses
sign in the same room with the testa-
| tor it is always presumed that it is done
| in his presence, unless the contrary ap-
| pears. In the event of the death of the
| witnesses, or their failure of recollection, the
| court will presume that the will was exc
| cuted in conformity to the requirements of
| the statute. In the present case the attend
| ing witness gives it as his decided impress
! sion that he subscribed the will In the same
room with the testatriX. Another witness
| thinks that his attestation was not in that
room. The judge of the Circuit Court was
of opinion that the attestation was not in the
presence of the testatrix. The jury and the
judge of the County Court were of opinion
that the attestation was in her presence. In
such case the Appellate Court ought TO
make every fair and reasonable presumption
in favor of will just and fair In its provi-
sions, and as to which there Is no imputa.
ton of fraud, unfair dealing, or undue in.
| f1uence. The decree of the Circuit Court is
therefore reversed, and that of the County
Court affirmed, and the will admitted to pro-
bate.
Summary.
The following is q summary of the pro-
ceedings yesterday:
Mutual Assurance Society OF Virginia Us.
Holt and ais. Petition to set the cause down
as privileged. Refused.
! Elicit us. Robinson and ais. Petition to
set the cause down as privileged. Refused.
Norfolk City Us. Cooke. Petition to sci
the cause down as privileged. Granted.
Swank Us. Blew, Judge, &c. Affidavit fol
a rule to show cause why a writ of prohibi'
ton should not be awarded. Rule refused
Morrison us. Morrison. Submitted.
Cole Us. Bright, &c. Submitted.
Stevenson vS. Wallace. From the Circuit
Court of the city of Richmond. Reversed
Judge Anderson delivering the opinion Of
the court.
Young, by, &C., Us. Barner, &c. From the
Circuit Court of Dinwiddie county. Re-
versed, Judge Staples delivering the opinion
of the court.
| Omohundro's executor Us. Omohundro
&c. Partly argued by Colonel Guy for the
appellees, and continued until to morrow.
| There is ope more argument to be made
in this case, when that Of Mann Us. Haskin'
will be taken up.
UNITED STATES CoURTs.-Ia the United