Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1881-04-29

LECTrEEs BY HON. E. j. PHELPS BEFORE TIE
MEDICAL CLASS OF TIE UNIVERSITY

The physician is often called on both &c
decide If person has the mental capacity to
make a valid will, and to be a witness TO a
will Then if the will is challenged in q
Court Of Justice the evidence Of the physi-
cIan becomes of much importance
The laws favor the disposition of property
by will, and any person who has arrived al
years Of discretion may make will, and
may dispose Of all his property as he pleases,
after paying his debts with the solitary ex-
ception that if he has wife, her claim must
be regarded; and if no provision is
made for her, or. ii she is dlssaiis-
fed with the provision made, she
may take her legal share. In Louisiana,
but in no other State, children have certain
similar rights. In order to make will valid,
four things are required. 1. The testator
must he of sound disposing mind and men,
ory. .. 1t must be expressed with sufficient
clearness (no particular form of words being
prescribed to indicate the intention of the
tcstator. 3. 1t must he signed by him, with
the knowledge that it is and intention
that it shall operate as his will 4. 1t must
be attested by the signatures of three wit
nesses who must sign it in his presence and
in the presence of each other.
1t is the duty of witness to satisfy
himself that the tcstator has sufficient
capacity to make will, and thai
his signature to it is genuine, and affixed
voluntarily and understanding the documen,
to be his will. The signature of witness tC
will is not mere matter of form. 1t is
his declaration that the will is genuine and
that the testator was Of sufficient mental
capacity to make will. The lecturer had
known a case where a physician who had sign
ed will as a witness, testified subsequently
in court that in his opinion the testator had
not sufficient mental capacity to make a will
The question was at once put TO him, why
then did you sign the document and his
explanation that he did it thoughtlessly was
not sufficient. The jury believed his sigma
ture rather than his testimony and the will
was sustained. If You have any serious
doubt as to the capacity of a tcstator, do not
sign will as witness.
1t is easier to determine incapacity by rea-
son of insanity in reference to disposng OF
property by will. than in some other cases.
When will is attacked on the score of in
sanity, it is necessary 10 determine how far
the delusion or monomania extends A man
may be monomaniac on some subjects, and
NAV lie able to make n valid will. But if his
monomana affects the disposition of his
property If, for instance, it takes the no,
uncommon form of supposing that his best
FRIEND wife or son or daughter, is his worst
enemy, and under that delusion he makes a
will in order to keep them from share in
his estate, such a will cannot stand.
The person making will must have mind,
perception, memory enough to be able to call
into his mind those who have claims on him,
to determine the amount of his property, and
TO decide by his own will to whom it shall
20. 1t is not necessary that such disposition
Of it should bs the wisest, or better than
some other 1t is enough that he had mind
enough to make will, and that it expresses
his wish and intention.
Incapacity may also arise from the effect
of some acute disease, or from the excite
msnt of a fever. The decision of such cases
lies almost wholly within the province of the
physician.
fncapacity may also como from old age.
Many persons seem to be unwilling to make
a will, considering it sort of premonition OF
death, and so they often delay it To Il sick ol
diving bed, or to extreme old age-when ma
ture has begun to close the shutters, and shut
up the tenement which the soul is about tC
abandon Every such case must stand lay
itself. and the question of capacity must be
determined by The actual condition oil tht
testatOr.
The law contemplates another ground OF
invalidity of will When n man Otherwise
capable Of making a will, has his powers Sc
far enfeeblcd by age or disease that he is es
pecially open to the influence of others, and
such influence is unduly exercised, 50 he
makes a will such rs he would not have
made of his own volItion and accord, the
will may he Set aside.
If physician called upon to attest II will
as witness has any suspicion of undue in
tiuence, it is well for him TO guard his assem-
by statement that he signsit, assuming that
there has been no undue influence. In thai
case, his signature would simply be evidence
of his belief in the capacity of the tcstatol
provided that everything was right, as re
CARDS influence.
No VII