The daily intelligencer. [volume] (Seattle, Wash. Territory [i.e. Wash.]) 1876-1881, 1879-06-17

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act. prior TO the l0,h section. II the
sections from the I'd to the 9Th, iuclu-
ave. it Is used almost or quite exclu.
.iyely in the sense Of infant; bat Ia the
first section. which I haze already
quoted, and in the sth section, where
occurs the phrase, d" thercefor.h sustain
towards each other the legal relation Ct
parent and child. and have all the
rights and are subject 10 all the duties
of that relation il is used in the sense
of offspring.
The l0:h section is benevolent and
remedial. It's spirit and scope are
higher snd broader than those of the
preceding sections. 1t lot only pro-
poses to allow the parental and flisl
relation TO be assumed between infants
and adults. where it does not exist by
nature, but to allow the parent who has
done his child the great wrong OF OBJ
scuring aud disgrscing its origin to
come forward. give his child father,
cover 1t from the consequences of his
I shame, and endow it with the love, the
maintenance, the protection and the
expectations belonging to lawfully
begotten son or daughter. 1t ought to
be literally and graciou.ly construed to
effect all that it contemplates. Unless,
then, the words employed in it are such
as to Legative the idea Of making ones
children, who are over age. legitimate,
it must apply to them as we'll as 10
others. No such words Of negative i'm
port appear.
Proceeding now TO apply the law fur
nished by section 10 to the facts, it
appears that the contestant was pub
licly acknowledged by the decedent to
be his own child This satisfies the
first of the three requirements Of the
section. He had no family other than
himself and her. and between himself
and her he maintained the rights and
| duties Of father tn daughter. This
l regard o sufficient compliance with
the second statutory requirement. He
also otherwise treated her as father
would treat his legitimate child. which
meets the third provision of the statute
Satisfaction Of these three provisions
causes her to be deemed legitimate "for
all purposes" If for all purposes. then
for the purpose Of lnheriting. If for
all purposes. then also for all the pur-
poses for which any person, Legitimate
within the meaning of the word "legit
innate" in the fourth section of the
Descent Act, is Legitimate. And. being
legitimate. she is entitled to contest the
will.
Next, We come to the main question,
Shall this supposed will stand or be
rejected?
Under this head l find the facts to be
that. on the 7th day of October. 1876.
at -. in Oregon. the decedent
executed the instrument mere contested;
that the decedent was naturally a man
Of feebler intellect than ordinary men;
that. for some years prior TO October.
1876, his bodily aud intellectual powers
had been failing continuously, that in
the summer Of 1875 he had paralytic
stroke. after which the deterioration of
his mental powers was much more per-
ceptible and rapid than before and
that, at the time of the execution of
the instrument in contest, he was not
Of sound and disposing mind and
memory.
The burden of proof ss to the dece-
dents mental capacity was upon the
proponents here Without discussing
the testimony in detail, it is enough for
me to say that they have not. in my
opinion, made ont their case. The will
itself IS not an instrument adapted to
impress one favorably with the mental
souDdness Of the one who made it. 1t
appears to be blind and random
attempt to divide up the testator's
property among his kindred. exclusive
of the contestant, without any discrim-
ination whatever. Perhaps discrimina-
ton would have been unjust, misplaced
and odisus. But. by persons of sound
mind, determination is usually exer-
cised, and in ordinary cases it probably
ought to be exercised. The testimony
Of the subscribing witnesses. and, in
deed, ! may say, of all the witnesses,
except Judge Walton, who Grew the will,
tend to show mental iucapseity.
The law is, that the testator must
have sufficient mind and memory to be
able to understand that he is making
his will. and how he is doing it. and its
effect both upon his property and upon
those who would receive it after bis
decease without leaving . will. The
Parish Will case. 25 N. Y. 9, 90. Red
field on Wills, 159. This rule is EN-.
phatically worthy Of regard in this
Territory. where the statute looks with
strong disfavor upon wills making no
provision for children. Laws '73. Sec
ton 90. page 25S.
Ny conclusion is that the instrument
IN contest is not the last will and tesla
ment, nor any viii! and testament, of
the deceased George c. Fisher, and that
it should therefore be rejected.
GREENE, j.