The Portland daily press., 1878-11-08
PROBATE COURT.
Opinion I'm siimsor Will Case.

On the second day of April, A. D., 1877,
Woodbury. Stimson of Gray in this county, ex.
ecuted his will giving to his sons. Daniel G.
Stimson, Russell 8. Stimson and Ezra Stimson
the Sums o. five dollars each, and TO each of
his grandchildren. the sum of one dollar.
All the residue of his property, he bequeath.
ed to his son Horace o. StimsoD, aud APP
pointed him executor of the will, requesting
''that be be relieved from the necessity OF
giving any bond for the faithful discharge OF
his duties as such executor"
Woodbury. Slinson died on the fourth day
of July, 1878, aud his will is now presented
for probate. All the heirs at law of the
legatee jpn in contesting it, 1t is objected in
the first instance that the will is not properly
attested.
Chapter "a, section l, R. S. 1871, provides
that "a person of sound mind, and of the age
OF twenty-obe years, may dispose Of his real
and personal estate by will in writing, signed By
MIN or by some person for him at his request
and in his presence, and subscribed in his
presence by three credible attestng witnesses
not beneficially interested under said will"
The attestation clause of this
will is as follows: "Signed. published and
declared by said Woodbury. Stmson in pre-
sence of US, who at his request in his
presence and in presence of each other, b ave
subscribed our names as witnesses thereto"
1t differs from the form given in thu books
in not SITTING forth that the testator "decared
the instrument to be his last will and testa-
ment" Having been long accustomed to a
prescribed form of an attestation clause in
wills, any omissions strike us as serious if not
fatal to the instrument itself, but it will be
seen that the statute only requires that tho
will "be subscribed in the testator's presence,
by three credible attesting witnesses"
While an attesting clause may oftentimes
simplify the proof of compliance with the
statutes, and is always desirable, it is not
required by law; and its entire omission would
not invalidate will when the fact of due at
testation was proved by competent testimony.
Leaycroftt vs. Simmons, 3 Bradford, N. Y.
81; Ella vs. Edwards, 16 Gray, So; Elliot VS..
Elliot. 10 Allen, 1858.
The testimony in this case satisfies me that
the will was executed in accordance with the
provisions of the statute. But before will
can be admitted to probate, the sanity of the
testator must be proved; and the burden of
proving lt IS upon the party presenting the
will. Cilley vs.. Cilley, 81 Me, 1853.
The statute before cited requires that per-
son should be OF Sound mind" to dispose of his
the testator's mind and memory sufficient to
enable him to know and understand the busi-
ness In which he was engaged at the time he
executed his will.
testator may have an imperfect memory
1t may be impaired by intemperancs and dis
O"oc' ANo may W CulluiSu III UiS WOTu6 anu
acts, or sit In the armed chair of dozi0g age"
and yet be competent at times to direct the foal
disposition of his estate. 1t is subject upon
winch thoughtful persons have often dwelt, aud
not untrequently the mind is clear as to the dis
position OF the results of life time of thought
a nd labor, when it is clouded and diSoroered
upon other less considered subjects
Woodbury. Stimson, at the date of bis will.
was advanced in years, and his memory aud in
tellect were somewhat i'm paired, but the three
witnesses to the will, whose duty it was to as
certain and judge of his mental capacity, testi.
fy that he fully understood the nature and
contents of the instrument he executed 10 their
presence; and this, with other testimony in the
case, convinces one that he was then competent
to make valid will
But It is claimed by the contestants that Hor-
ace y. Stlmson, with whom the testator lived,
and 10 whose favor the will is made, exercised
undue influence" upon his father, and wrongs
fully procured this will in his interest. A tes-
tator may be OF sound mind aud competent, if
left to himself, to make q valid will; but may
be induced by the harassiLg opportunities Of
those about him, to dispose of his property in
manner that his unbiased judgment would not
approve. Honest suggestion and moderate per-
suaslon do not amount TO undue iufuencs. To
lnvalicate will for this cause, it must appear
that the free agency of the testator was destroy
3D. by threats, violence or persistent impor'uni-
ty. l Jarmiu on Wills, 81; / William on
Executors, 40; Turbine VS.. Brook field, N. Y.
Sur. Reports, 222: Smaller ". Bumstead ct ais.
% Mass. 100.
The sanity of the testator being proved, the
burden OF proving undue influence, 1 think,
although the authorities are conflicting, is fairly
put upon the party alleging it. The fact that
this will is made 10 tdUor of one son to the ex-
clusion OF the other cnidren, is, no doubt, the
foundation of the belief in the minds of the
OF some unlawful influence upon
the father, ny the favored son.
But however repulsive the idea Of disnheri-
lance ordinarily is to fair minds, it would not
be safe to draw any inference of undue inhu-
ence from that fact. In his sane mind, "a
man may do what he will with bis own" He
s Judge of what is right, and we cannot know
the motives and feelings which underlie his
action; ard although the act may sometimes
seem unnatural, and even wrong to us, il it is
nos against good morals and public policy, we
have no right to interfere with it. The only
question is. was 1t the voluntary act of compe-
sent mind?
Great stress is laid by the contestants, upon
5he fact that early in the year 1876 the testator
was induced to draw from the savings bank
considerable sum of money for the benefit of
The principal legatee. Some of the witnesses
estify that the testator told them that che let
Horace have this money to avoid faultfnding."
Another witness testlfies that 'he said he
rev rev, it ., out Of the bank to get
was the cause of this loan I find
That note and mortgage were given to secure
its payment which now belong to the estate,
and there is no evidence that the security was
insufficient, and to my mind it does not seem
an unnatural transaction, or one, considering
Its date and the relation of the parties, that
throws much light upon the question at issue.
1t also appears in testimony, that at times
the father complained of his treatment by this
son and exhibited feelings Of ill-will towards
him. and SAID that 'he was going to get all he
had" But cannot overlook the fact that he
continued to liue with him to the time of his
death, and regard his complaints as the nat
ural result of age and infrmity and the fear of
want and poverty which often accompanies
them.
There is large mass of testimony of the
same tenor, but the most of it il so remote from
the date of the will, that it is entitled to bat
little weight aud the complaint that the wife
OF the residuary legatee lavished UPON the tes-
tator attentions and caresses calculated to in
d1ence his mind and conduct, cannot be con-
sidered, when she is not bene6cially inter ested
under the WILL and there is no evidence that
she ever expressed even wish to any one, as
to the final disposition of her father.n-law's
estate.
Upon the other hand, there is the testimony
OF MIR. Anderson that the testator, alone and
without suggestions from any source, gave him
full directions as to the disposition of his prop
erty, which he committed to paper, and subse-
quently from the minutes SO made drew this
will at his Office 10 Portland and took it to the
testator in Gray and read it TO him, and he sub
scrbed it, with no one present. except the wit
ness.
A full knowledge of the contents Of the in
strument is thus traced to the testator, at the
time of its execution, and he never afterwards
complained of ignorance Of its provisions. The
health of the testator was comparatively good
at the Tina of its execution, SO it could not
of death; and more than year elapsed BE-
and no effort was made by him to repudiate or
revoke the transaction, and not even an oral
declaration appears that he had been in any
way Influenced or urged to its accomplishment;
and from the testimony of Mr.. Stsrbird, that
in 1876 the testator "told him several times
that he intended to give his property to his son
Horace and the subsequent statement to Mr'
Latham in December, 1877, that he had done
so, l am convinced that the provisions of this
will are in harmony with the unbiased feelings
and mind of the testator, and must admit II
to probate.
Chapter 81 of the Public Laws of 1876 pro-
vides that letters testameutary may issue with
ont the executor giving bond, when the will 80
provides, but when it appears necessary OF
proper, the judge on application of parties
interested may require him to give bond as III
other cases. In this case application has been
made by a creditor of the estate that the execu-
tor named in the will be required to give bond
and shall order one, as l have done in all
cases when such application has been made,
in such amount as may seem reasonable.
VIM x. Neal and j. d. Anderson in support