The daily gazette., 1882-05-23

faction Of the jury that 1t was made as q
will and with will, by party capable of
doing the act, having the knowledge that he
was doing 1t and having knowledge of the
contents of the paper which processes to be
the evidence of his testameDtary purposes
In that case, as in this, the maker of 1t was
afflicted with a great defect of vision,
although not totally blind, for he could read
| writing with the aid of double glasses but
there was no proof in that case that he
either read the paper purporting to be his
VIII, or that 1t was read over to him In his
presence by another before he signed 1t, and
it was executed but the person who drew
it and superintended the formal execution Of
II took direct and valuable pccuniary in
terest under the provisions Of II and was
made executor of 1t, in both of
which respects 1t was strikingly simi-
lar to this case, and as the
court In that case said to the jury in
reference to these particular features of it
that it is not essential IN any case to be proved
that the will was actually read over by or to
the testators, If there be other evidence sufil-
eient to satisfy the jury that he was made
acquainted with its contents. A blind man
may make will, and valid will may be
drawn by party taking an interest under
it; but the blindness of the testator, or the
interest of the party drawing and attending
| to the execution of the instrument, are cir
cumstances tending to put the jury on their
| guard in scrutinizing the evidence which is
| offered to show that the testator had know
| ledge of its contents But II evidence be
| given that the testator was blind, or from
any cause was incapable of reading it; or If
a reasonable ground is laid for believing that
! it was not read to him, or that there was
fraud or imposition of any kind practiced
upon the testator, it is incumbent upon those
who would support the will to meet such
| proof by evidence, and to satisfy the jury
| either that the will was read, or that the
| contents of It were known 10 the testator.
In all cases the burden of proving the will
on an issue like this to the satisfaction of the
| jury, is imposed on the party propounding
| it, and it is in general discharged by proof
| of capacity, and the fact Of cXecu-
| ton, from which the knowledge of
and assent to, the contents OF the instru-
ment by the testator is assumed; and
| 1t cannot be that the simple fact of the party
| who prepared the will, being himself
| legatee, is in every case and under all cir
cumstances to create contrary presump-
ton, and to call upon the Court to pro-
| nounce against the will, unless additional
evidence is produced to prove the knowl-
| edge of its contents by the deceased. All
| that can be truly said is, that II II person,
| whether attorney or not, prepares will
| with n legacy to himself, it is at most a sus-
| piciuus circumstance, of more or less weight,
! according To the facts of each particular
case in some of no weight at all, as in
| the case o! 4 trilng bequest out of large
estate, but varying according to the cir
cumstances for instance the quantum of
the legacy, and the proportion 1t bears to
the property disposed of and numerous
| other contingencies; but in no case amount
| ing to more than circumstance of sus-
picion demanding the vigilance, care and
circumspection of the court investigating
the case, and calling upon it not to grant
| probate without full and entire satisfaction
that the instrument did express the real in
| tentiOns of the deceased. Darts ct. al, q.
Rogeli, HOust 81, %. And as was further
said in that case by the Court, so we must
| say TO YOU in this case, that as the craftsman
of this alleged will took as dcvisce in fee
nearly one-half of the real estate owned and
disposed of in II by the maker of it, the
| personal estate amounting Obut little in com
| parisun with it, although both estates were
| small, the extent and force of which the
jury must judge Of in estimating the
amount of suspicion that this circumstance
throws over this case, and the corresponding
necessity it produces of evidence to be re-
uuired in addition to the act of its having
been read not to the deceased particularly,
but to those then in the room generally,
consisting of the persons there assembled to
witness it, and the maker of it then lying
in his bed and the craftsman of it, and i'll
addition to the act Of its formal execution
soon afterwards, TO satisfy the jury that
Michael Doran, the maker of IL, had knowl-
edge of its contents.
As to the objection raised to the validity
of the instrument as last will and testa-
ment on the ground alleged by the plaintiff
the contestants in this case, that it was pro
cured and caused to be made by deception
practiced and undue influence eXerted by
one or both of the defendants on the maker
of il In his last illness, and only few days
before his death when he was very sick, and
too weak and feeble both in mind and body,
either to comprehend, suspect, or resist, aud
it will be for you to say from all the
evidence In the case how far this objection
has warranted and sustained by 1t. The
general doctrine of the law on this subject
r has also been well stated in another and
similar case in this court in which it was
held that mere solicitation will not be suf-
flcient to vtiate Il will made by person
having knowledge Of what he was doing
, and intending to do it, although his act may
, be brought about by solicitation, or that
, kind of influence which disposition u
, crafty another may produce. But if from
r age or imbccility a tcstator could be induced
to make his will contrary to his intentions
f and against his own wishes, that would b'
Y undue influence, and its effect upon doubt
| full or fluctuating capacity would lnvalidatt
C the will On all these points the age ant
o bodily condition of the testator, his con
4 dition and circumstances, his know
r affections and preferences, and the CORE
4 spondence contradiction of the will to thes
s affections, the manner OF making 1t, th
persons around him at the time and thei
Il capacity and creditability are all facts to b
n considered And where the will is writer
+ by a person who is to be benefited by it, o
r where improper influence is imputed owe
,r Il testator of doubtful capacity, strictc
IL proof will be required of volition AM
It capacity, as well as of the statutory requisit
- to the formal execution of 1t. So the Jur
Ne are at liberty to regard evidence of the testl
N tors previous purposes in reference to hi
Of testamentary imposition, and OF his know
of affections and preferences, rs operating o
Il, the question whether the instrument pre-
ei pounded is or is not his will. Sutton .. y"
G. ton ct. al, Hayr 459.
of And we therefore say to you that ON Tn
es question of undue influence or deeeptiG
il, alleged in this case it will be your duty
he consider and weigh all the evidence produce
it, ON both sides as to the mental and bodi
lis condition and capacity of Michael Doran
n the time this instrument was executed, NJ
1t. on that day, and both before and afterwar'
is nm to the time of his death five or SIX da.
nd afterwards, and reconcile any diserepen'
a which occurs in it, and if not then.lt Is yo'
4 - fEaU