The Newtown bee., 1892-02-05
SOUTHPORT.
THE CoDICIL TO MRS FERRIS WILL
REJECTED.

THE CoDICIL TO MRS FERRIS WILL
 REJECTED.
 Judge w. B. Glover, in clearly put decision, has admitted the will of the late Henrietta Perry to probate, but re- jected the codicil of December l, 1891, giving these convincing reasons for his course:
 It is admitted that, at least up to Thanksgiving day in November, 1891 de ceased was of ample testamentary capac- ity. About that time, she became affect ed with a disease of the brain which, in- creasing, resulted in her death, Decem- Der 10, 1891. The change in her condi- tion seems to have been sudden and to have come before her physician, whom she had asked to warn her of any seri- ous symptoms, that she might before her death attend to certain business, was aware of it's approach. It also appears that, from the last week in November, 1891, to her death, her mental condition was that of stupor or semi coma, from which she could be partially aroused on- ly with the utmost difficulty and that then she explained an apparent deafness by the fact that, although she could hear, she could not understand the meaning of words. On the morning of December, from her articulation of two or three words, her attendants surmised that she desired the attendance of her legal ad- wiser with her papers. Accordingly, he was telegraphed for and, in response to the telegram, he reached her about half past o'clock in the afternoon of that day. Prior to that visit, he had not seen her for about Is years. After an inter- view, with some interruptions, of about three hours, he drew the instrument of fered for probate and it's execution was attempted iii the presence of the sub- scribing witnesses and two others. It seems that deceased made an effort to sign the paper and succeeded in making two or three letters of her name, after which her signature was completed, ,part- ly by Miss Anna Sturges and partly by John c. Hollister, who held her hand and formed the remaining letters of her name.
 MT Hollister testifies that, although somewhat difficult to understand her wishes, he came to the conclusion, as a result of his interview, that deceased had at the time testamentary capacity. Drs Dunham and Wells agree that Mrs Per rvs mental condition, at time shortly previous to the drawing of the will, was such that the details of even the simplest contract could not have been intelligent ly considered by her and pr Durham, who regularly attended her as her phys ician, testifies that, after that, her men, tai condition never improved, but that her mental power gradually waned until the time of her death. In this, he is cor roborated by the nurse, Dora A. Beers, Mrs Henry Sturges and Anna B. Sturges all of whom were Mrs Perry's almost constant attendants during her sickness. Simon c. Sherwood, subscribing witness and Abram B. Sturges, who was also present at the time of the execution of the paper, concur in stating that the de- ceased at the time did not appear to be of sound mind and memory.
 On the day on which the codicil was attempted to be made, it is undoubtedly true that Mrs Perry realized the fact that she desired to make testamentary provis- ions additional to those in her original will. I have no doubt that both Trinity college and the Berkeley Divinity school were objects of her bounty for which she had desired to further provide. But cannot, however, from the testimony as given in this court, find that, on the day in question, she was able to comprehend or intelligibly express what may have formerly been her desires. That she did, after much trouble and long continued effort, enable Mir Hollister to arrive at an approximation Cor, from his own testi- mony, that is all some of the provisions are) of what she appeared to desire is true. Yet it appears from the evidence that, in at least one instance, some at tempted instruction was entirely unintel- ligible to either the scrivener or the at tendant, and does not appear in the all legged codicil.
 Physical weakness does not in any sense of itself deprive testator of test amentary incapacity; nor yet does men tai weakness necessarily do so. Our courts have adopted broad and liberal views in this matter of testamantary ca pacity and, as the law stands in this State to-day, there is but little fear of the testament of any man possessed of even very small modicum of mental vigor being refused probate on the sole ground of mental incapacity. Yet can not find from the evidence that Mrs Perry's condition on the day in question brings her within even the broad lines laid down by our courts in this matter. Stricken with death; having for more than week been in such mental condi- tion, in the opinion of her physician, as to be unable to properly comprehend even the simplest business matters; un- able to grasp the meaning of ordinary words; on account of physical weakness without strength to enunciate more than now and then disconnected word and that audible only after great effort; with out the ability of making her lawyer or attendants comprehend what appears from the evidence to have been her de- sire as to at least one of the changes to be effected by her codicil, the testatrix presents picture of mental incapacity which even the most liberal views could hardly embrace and, if they did, they would be unlikely to lead to justice and safety.