Year: 1861

not require him to bequeath his property to Bishop
Maigret personally.


The variance, to legal effect, between the instru-
ment drawn by Mr.. Lee. and an instrument drawn in
accordance with Nsdal's instructions to Mr. Perry.
quite clear. The first is q viii in favor of Bishop Ma
graft rs private individual to the sole use and bene-
ut OF himself and his personal representatives, while
the other would have been viii in favor Of the Roman
Catholic Bishop, in his official capacity, trustee for
the Church. to the celebration Of masses or pray


ers for the rest of the tesators soul that Is to say


will in favor Of the Church. This distinction was not
overlooked by the proctor for the proponent who, in
the course OF his argument, admitted that II the Court
could hnd this document to be viii in favor OF the
Church, his client could not take underit He argued,
correctly, that this is will in favor Of Dr. Maigret
and his heirs and in order to remove any doubt as
to his clients capacity to acquire property to his pr-
vate use he introduced as a witness Mr.. Modesto,
Roman Catholic priest who testified that the cergymen
OF that Church here Of the order Of the Sacred
Heart and are not precuded by the rules Of their or
der from acquiring property to themselves, by inherit
| ance, gift, or any other legal way.


The very fact that this is not will in favor OF the
Church. but viii in favor of idiridHal. forms the
hrst point at issue. and first strikes at the validity OF
the instrument for. while the law has not made re-
qulslte that viii should assume any particular form,
or be couched in language technically appropriate it
should disclose the real intention of the maker respect
ing the posthumous destination Of his property. Jar
man on Wills, Vol l, page 1871 But il is argued that
the document now presented duly executed by Ma
da after 1t had been read to him. and had recev
ed his approval and therefore with proper knowledge
OF ITS contents and import. Under the circumstances
OF the case the ons clearly rests upon the proponent
TO establish that position Speaking of the rules gov
ernng cases where wills are prepared by parties who
take an interest under them and thereby suspicion is
raised as to the validity Of the Wills which rules would
seem TO De equally applicable in cases like the present.
the learned Mr.. Baron PARKE, in Barry Butlin,
said. on behalf Of the Judicial Committee Of the Privy
Council, The rules Of law according to which
OF this nature to be decided do NOT admit Of any
dispute so far as they necessary to the determine
ton of the present appeal and they have been aequ


esced IN on both Sides These rules two, the first
that the 0HUs proad lies in every upon the party
pro2ounding wll and he must satisfy the conscience
OF the Court that the instrument prOpounded is the
last will of free and capable testator The second is
that II party writes prepares viii, under which
he takes benefit, that is circumstance which ought
generally to excite the suspicion of the Court and calls
upon 1t to be vigant and jealous in examining the
ldence in support Of the instrument in favor of which
II ought not TO pronounce unless the suspicion is
moved, and is judiciay satisfied that the paper pro
pounded does express the true will of the deceased
These principles to the extent that have stated, are
well established" tJsrman on Wills, page A, note
=. The same principles we apprehend, applica-
bic in any case where from the circumstances there
well founded doubts to whether not the testator
had full knowledge of the contents and legal import,
of the instrument propounded Mr.. Surrogate BRAD
FORD. OF New York, in the case of Burger Hill,
which IS case much in point, held that, besides being
satisfied as to the capacity Of the decedent it is for the
Probate Court to determine, whether in performing
the particular act in question he had intelligent
dersandng Of the contents and effect of the instrument
executed as will and that generally, the oiRus tes
tan is to be inferred from the act of signing and FORM
al publication but where the capacity is weakened
impaired. though not destroyed and there is evidence
of undue influence. fraud, imposition, mistake, the
presumption derived from formal execution, may be di-
minished entirely overcome IBradfords Rep, VOL
l, page 3601 The same learned Judge held. in the
case Of Weir Fitzgerald, that Besides formal
proof of execution, something Is necessary to
tablish the validity Of viii when, from the n6rmites
OF the testator, his impaired capacity, or the eres-
stances attending the transaction. the usual inference
cannot be drawn from the formal execution. Addition
al evidence is required that his mind accompanied the
WILL and that he cognizant Of its provisions
[Bradford's Rep, Vol. 2, page A. The language
of BRADFORD, in the Of Burger Hill is appli-
cable in the present Speaking of the testator
he said: ' He obviously meant to make viii, but
whether he intended to make this particular viii.
whether his instructions were comprehended wheth-
they were correctly put in writing, whether when
the will read he understood its contents wheth-
they conformed to his real wish whether in fact
this is his will, is TO be determined only by eonsid-
crate examination of all the circumstances attending
the transaction"


In addition to the fact that the instrument pro-
pounded in this case duly executed, there is
proof that it was read to the decedent in the
English language by Mr.. Perry. who. on his exami-
nation said, took the will to be signed on the af
ternoon of the same day that it was made. I read
it over to him slowly. asked him in English If he
understood what was reading, and he said he did;
and after he had signed he began TO speak Spanish.
don't know whether he understood what ostentntioa
meant or not. 1 think he understood enough to
know the meaning of the will Mr.. Doiron testi-
fed i" L heard the viii read over by Mr.. Perry.
The deceased seemed to understand it. Perry asked
him twice If he understood it, and he said yes.''


On the other hand, it is clear, already observed,
that the instrument varies materially from the in
structions given by Nadal to Mr.. Perry only few
hours before it signed. It is apparent from the
testimony of Langherne Desha, the assistant of the
Hospital Physician, George Champlin, who slept in
the same room, and of others, that Nadal was much
troubled at the approach of death, and about his
souls welfare. Desha testified that during twelve
years service assistant practitioner he had
many persons die, of various and creeds, but
he never saw any one much frightened at death
as Nadal was. 1t seems to evident, then, that
death drew near, Nadal, either by the advice Of
friends, the promptiDgs of his own heart formed
the purpose natural to superstitious mind, of pro-
viding for his future peace by dsposng Of his goods
far as he then capable Of making adisposion.
for the procurement of prayers for the benefit and
rest of his SOUL" There is evidence that he sub
sequenty changed his mind in regard to the destna-
ton of his property, or that he aware that the
will prepared for him did not conform to his desire
The English language, in which the document Is
written, was to him foreign language, with which
he was but imperfectly acquainted. His execution
of viii in that language is like the execution of
viii by person who is unable to read; for il is not
shown that he could either read il or write it. On
the contrary Mr.. Perry, who for eight years his
next door neighbor, and his intimate acquaintance.
said he had never seen him write anything but his
own name, Jose, nor read any language other than
the Spanish. We think it would be q violent pre-
sumption indeed TO suppose that Nsdal was aware
of the variance between the paper drawn up him
and his instructions; for Mr.. Perry, who Is q much
more intelligent man. did not understand the differ
till it pointed out by counsel and of
he did not direct the decedsnt's attention to it.


Can the conscience of the Court then be satisfied.
upon the evidence adduced, that this instrument
does truly express the ias ,R Of Jose Nadal as to
the disposition of his propertys Does disclose his
reaL intention respeeting its destinationi We think