Year: 1878

The Merrill will case ADDS an0thcr 10 tnc
constantly increasing attacks made by heirs
at law, upon testamentary devises, and based
upon the unsound and non-dispOsing minds of
testators. There is nothing Ill this particular
case to be here discussed; there is a certain
samcness in all the testimony presented IN
such trials; witnesses upon one side swear to
the eccentricities and the irrational behavior
of the departed; other witnesses contradict
them and so an issue is made up for the jury.
The question which forces itself upon our at
tentiom is, Where is cOntesting of wills to
stop 1t is scandalcus in its social results; it


is frequently dishOnOr cast upon those who
are dead and helpless; it discourages those
who might otherwise leave a portion of their
estate to public uses, and therefore it may be
considered against public policy. So far as it
hinders man, through the apprehension which
it excites, from disposing of his estate as he
pleascs, it works a substantial injustice.


This trouble is, moreover, not confined. TO
the matter of wills Men who murder and
men who steal are constantly setting up their
plpas that they were ont of their wits when
they committed this or that felony. 1t is quite
time that questions of sanity or insanity
StOulu DC ulScUSStu dttblultS W pohhO SWIM
tGc principles and decided with something
more of judicial accuracy. Particularly, the
dividing line between mere eccentrlclty ana
an incapacitatng lunacy should be more dis
tinctly marked. People who make surprising
wills usually have pretty strong character OF
their own, and generally when they leave their
money away from their next of kin they have
a reason for doing so. Society and, perhaps,
sometimes the courts, commit the gorgeous
blunder of suppOsing that this should be a
good reason, if the will is to be maintained;
and if they caunot be furnished with good
reason, they maintain that the testator must
have been crazy. But testatOrA may
make what appears to be the most
foolish of devises, and yet be quite capable of
executing a will. Wealthy men, up to the
last moment of their lives go about as they
please, spend as much money as they see fit.
and in all sorts of absurd ways, and nobody
suspects that their brains are diseased until a
will made by them is offered for probate
which disappoints, astonlshcs oifends or eXaS-
neratcs. We ought at least to be as just
toward the dead as We are toward the living
Oddly of conduct, peculiarity OF tastes, sinGu-
larity of habits the violence of enmities, are
of no more Importance when he who exhibits
them is dead than they were while he was in
the flesh Why should n man be thought COM
petcnt to manage his affairs up to the last
moment and yet incapable Of directing their
management after his deathP


1t is the fashion, now, to dispute the valid
ity of wills; but If the fashion IS carried
little further there will be few such instru
mcnts to dispute, and the making of one of
them will be considered as prima facie evil
dence of nm unsound mind. There would be
terrible outcry if any one should propose to re-
enact the law of entail. but how would that
be substantially different from course which
virtually compcs every dying man to give all
his property to his heirs I