Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1913-07-24
A LEGAL SUGGESTION.

Apropos of tho Columbus Smith will
case which has been attracting so much
attention. turist Of such repute that
we dare not mention his name without
permission, was talking the other day
more or less at random when he touched
upon a very suggestive scheme for the
correction Of a short-comlng of the pres
ent law. He claimed no right Of author
ship in this, for he said II had been an
old hobby OF his fathers.
He mentioned the fact that the law in |
It's present form provides no means TO
enable a man who desires to will his
property to prove that he has the requisite
mental capacity, and went on to explain
the results OF this defect and the ease
with which Is could be corrected.
Briefly stated the law Is that in order
TO make a valid will the maker, or tes-
tator as he Is technically called, must
have mind enough to realize who are the
natural objects of his bounty and to un-
derstand the nature of his own acts. He
may have been mad March hare at
some previous time, or he may become
hopelessy insane later. but If at the time
of making the will he had the degree
of mentality which the law requires. the
will stands. The strange thing Is that
although the validity of the will depends
upon fact so obscure and so likely to be
msjudged the capacity OF a mans
mind at a given time, the law provides
no way of getting at these facts until
after his death which may come years
later It provides no way for him to es-
tablish his testimentary capacity at the
time, but waits and relies upon the gos-
sip of neishbors and oldest Inhabitants.
II would be so easy when a man is
about to make a will, by asking him
few questions and hearing evidence of
his acts and reputation. to form fair
Judgment of his mental faculty, and it is
so hard after his death to even approx
mate a judgment, that It Is a wonder the
law has been allowed to go on for CEN
turtles with this awkward procedure. 1t
Is as If a man whose business 1t was to
determine the candle-power Of an electric
light should always wait until the light
has gone out before beginning his in
vestigation. The law is usually wise
in human matters that this lack is hard
10 explain.
no tpt,N
what as follows: Columbus SIXTH desir-
ing TO make a Will and Wishing to settle
for certain his mental capsunit' at thf
time of making would apply at the
proper tribunal. probably the paoonts
court announcement would be mads Of a
hearing at which all persons likely to be
In the line OF Inheritance might appear
10 contest mis- documentary capacity. or
dinarIly no one woulG appear and the
judge having satisfied himself OF the
mentality of the applicant would decres
the validity OF that will 30 far as tbs
question of testamentary was concerned
The will would then be placed on file II
the court. In case :he capacity Of thu
applicant were questioned enc trial woulC
be similar to proceedings In cases wher'
guardian has been applied for In NJ
case would 1t he necessary to divulge tn
contents of the VIII.
To laymeh judging Off hand. II woui'
seem that some such change would les
sen the amount of litigation and TO tina
extent reduce the cost of government
and by giving the testator a chanc
to speak for himself Increase mems con
troll over Che disposition OF their property
1t is well recognized that the purpose o
the original laws making possible the dis
position of property by will were passe
for the satisfaction OF the men who ha
property 10 leave. not for the benefit O
expectant legatees