The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1904-09-14
WILL CONTEST.
Judge HilI's Decree in the Matter of
the Last Will and Testament of
b T.. L0inaN. Deceased.
tate OF South Carolina,
hbayillp rnunfN-

Proceedings TO prove Will III que lorl Vi
Sallie j. Townsend, sister OF testatriN filed
a notice in this court requiring that the last
will and testament OF deceased be proved IN
Messrs. Graydon & Graydon appeared as
attorneys for the said Sallle j. Townsend and
Messrs. F. B. Gary and w. +. Greene lot
Emery NJ. McCord, prepayment OF Tue VIII.
The positions taken by counsel lot the
plaintiff as taYhy the purported will should
not be admitted to probate in due form OF
law, were as follows, VIZ:
l. For want Of legal attestat1on In that j.
A. McCord, one of the witnesses 10 the VIII, IL
the husband of Mrs. Savannah McCord, a de-
yisee under the will who was given more
than she would be entltiea 70 unuer l9e Ia"
of distribution in this State, in case OF intes-
tacy. -.
testamentary capacity at the time or the al
legged execution OF the will, owing TO the ef
facts of extreme Illness and the use OF NOR
phine or other anodynes..
3. Because t~estatrix did not, of herown act.
sign her name or make her marx 10 the VIII.
but that 1t was done by DR.. Neil, who wrote
And iastly-because the will was not signed
by the witnesses 10 the presence OF testatrlX
In the manner required by law.
-. This was q very interesting case and one IN
volving many nice points OF law bearing
upon the execution of Wills, which were
brought to the attention OF the court Oy coun-
Before proceeding further l deem 1t we'll in
order 10 n proper understanding OF the case.
10 state that the testatriX was totally blind,
being so from her early infancy.
AS to the first objection. to'Wlt: mat Inc
will was In valid because of the incompetence
OF the witness j. A. McCord, Tor the reason
that his wife was given more under the will
than she would have been entitled 10 IN easy
of intestacy.
1 would say that, granting such to be true,
that fact of Itself would not render her hus'
band incompetent as a witness TO the extent
OF in~validatlng the whole will, but the eilecl
would simply be to render null and void sc
much OF the bequest or devise as the same
exceeded in value the amount to which the
devisee would be entitled, In case OF lntes'
tacy--besides there was no evidence produced
at the trial TO show mat the devise 10 MIS-
McCord exceeded In value that TO which she
would be entitled in case OF iutestacy.
In reference 10 the second OBJECTION, tina
teslatriX was not possessed OF tes~tainentarS
capacity at the time or the alleged execution
OF her will, owing TO the effects OF extreme
illness and the use OF. morphine Or other
anodynes-it occurs TO me that II Is only ne
cessary to recall the evidence OF DR.. Nell wnD
wrote the Will and also witnessed II, 10 sci
aside that objection.
DR.. Neil testified that when he called to see
testatrix on the day when the VIII was exc
he replied that he had never written one,
but thought he could; that she said she want
ed her will written then that be wrote Inc
will entirely at her dictation; that he did not
know, before that what property she had
that after writing the will he read 1t over 10
her and asked her If 1t was as she wanted IL,
to which she said IL was that the matter AZ
TO who should be gotten TO witness the Will
was discussed between them aud 1t was set
tied tina J. A. McLord and w. A. LomaX
should be sent for, for that purpose that
when the will was written the testatrlx an |
he were the orly persons in the room-all OF
which going t. show that she knew what she
wanted done, knew the extent and nature OF
her property and the objects OF her bounty
Shouler on wins, page Is. under the mead oil
.'Testamentary Capacity" says "as a general
proposition, II the testator possesses mind
sufficient to understand, without prompting,
the business about which he is engaged, when
his will is executed, the Kind ana extent o!
the property 10 be willed, the persons who are
the natural objects of his bounty, and the
manner in which he drsi1 20 the disposition 10
take effect, his will is a good one"
And again, on the same subject, page y.
Though one should be IN q dying condition,
his capacity is sufficient, II, when his atteu,
ton is aroused, his uird acts clearly and
with discriminating Judgment as to the thins
to be done and It's bearings"
Granting that at the time the Will was exc
cuted the testatriX was in q very feeble condi-
ton physically, she undoubtedly possessed
mind sufficient TO Understand, without
prompting the kind and extent OF her pro-
perty and knew whom she wished TO be the
objects Of her bounty. And granting thai
she had TO be aroused to sign the Will, when
she was requested to do so, she readily put
out her land for that purpose, as was testified
to By all of the witnesses TO the Will.
This then brings US to the consideration OF
the third objection: THAT the testatriN did
not, OF her own act, sign her name or make
her mark, but that IL was done by DR.. Nell
who wrote the will"
l hardly suppose that counsel meant that
simply because testatrix made her mark, and
being blind, 1T was necessary for some one To
take her hand and guide 1t TO the place wher-
she made her mark, that therefore II was not
she who made IL, but DR.. Nell who held her
hand-but rather that she was entirely pas
sive orinert in the matter and contributed
nothing 10 the act, the whole thing being done
by DR.. Neil.
From this latter standpoint let US examine
the testimony of the witnesses to the will bear.
ing upon that matter. DR.. Neil says, when |
offered her the will TO sign she said she could
not see to sign IT. | then guided her hand
TO the place TO make her mark" by counsel
twas the actual making OF the mark, when
you guided her hand 10 the place, youx act OF
hers, l mean by the exerlion OF your Will or
hers ?" To this DR.. Neil answered. 81 can't
say who exerted the power In making the
cross-the volition was hers"
w. A. LomaX testified as follows: "Nhen
DIR. Neil asked her TO sign her name she
she could not see TO write. be then gave her
the pen. l can't say certainly whether she
grasped the pen or not"
j. A. McCord witness TO the Will testified
that "Dr. Neil called US in saying that the
will was ready to be witnessed. He told her
to sign will, she said she could not write, that
she always made her mark. DR.. Neil then
wrote her name and gave her the pen and he
made the CROSS" On being shown the will wit
messed said, that Is my signature and that is
the cross which she made, | saw her make It."
From the foregoing testimony 1t is clear u
nv mind that the making OF the cross, 10 all
intents and purposes was the act OF testatrix
that her Will entirely concurred with that OF
DR.. Neirs In the m~atter-granting that he
alone furnished the motive power necessary
10 make the mark.
As regards the fourth, and only remaining
objection raised by counsel as TO why the will
should not be admitted to probate, TO wit:
That the will was not witnessed IN such 81
manner as to fully meet the requirements OF
the law as Interpreted by our highest courts
am free to say that | have not been able to
arrive at so satisfactory a conclusion as /
raised by counsel.
In seeking a solution Of the matter it oc.
CURED 10 me that the main, II not the only
question to be answered was: Did the tesla
triy know or was she conscious of what the
witnesses we're doing when they were in the
act of signing their names as witnesses to her
willie"
have to rely upon the facts teslstied 10 by the
From the testimony of DR.. Neil her mind
was perfectly clear, as she dictated her Will
without any assistance from any one. Tnai
being the case, she must have known what
Mr.. McCord and w. a. LomaN came into the
room for-certainly SO, as IT was she, accord
ing to the testimony OF DR.. Neil, who had
suggested their names as suitable persons 10
witness her will, wheu that matter was being
discussed between herself and the Doctor.
And besides which she must have heard DIR.
Neil when he called them in the room TO sign
the viii. o,por a,o, rs utu g.
Archer as reported in 3rd Strobh, page 297-a
case on which counsel for the plaintiff SEEM
cd ~ Law great stress, the witnesses were
Nth In two or three feet OF the testator, JOhn
Calvert. who was blind, and upon which fact
the court commented In rendering the opin-
ion sustaining the Will, aoh thihk IL was