A treatise on medical jurisprudence / by Francis Wharton and Moreton Stillé ; the medical part revised and corrected, with numerous additions by Alfred Stillé.

  • Francis Wharton
Date:
1860
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Licence: Public Domain Mark

Credit: A treatise on medical jurisprudence / by Francis Wharton and Moreton Stillé ; the medical part revised and corrected, with numerous additions by Alfred Stillé. Source: Wellcome Collection.

Provider: This material has been provided by the National Library of Medicine (U.S.), through the Medical Heritage Library. The original may be consulted at the National Library of Medicine (U.S.)

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    BOOK I.] IMPOSITION ON TESTATORS. [§ 5 of the law has anxiously sought for every safeguard by which such intrusions upon the sanctity of dissolution, as well as upon the rights of families, can be deprived of motive. The same memory for the making of a will, agreed all the judges of England at an early date, is not at all times when the party can answer to anything with sense, but he ought to have judgment to discern and to be of perfect memory, otherwise the will is void.(A) He ought to have a disposing memory, said Lord Coke, so that he is able to make a disposition of his lands with understanding and reason; and that is such a memory as the law calls sane and perfect.(i) While, therefore, it is only necessary that there should be the capacity of reasonable disposition, great jealousy has been exercised for the correction of extraneous influence on the testator. Thus wills have been set aside when they were preceded by over- importunity of friends standing in confidential relations,(J) where the house- keeper and physician were shown to have earnestly urged a non-natural scheme of distribution ;(k) where the wife in fact dictated the will, the testator being at the time unable to speak, she pretending to understand him, and making herself the sole devisee for life, and imposing as a devisee in remainder a ficti- tious niece ;(l) where one relation produced the disinheritance of another by false representations as to his character ;(m) where the testator was old and feeble, and the will was made under the directions and to suit the purposes of a colored woman in the family,(n) and where a husband exercises coercion.(o) In short, whenever the provisions of a will are inconsistent with natural justice, it will require strong proof of capacity and volition to sustain it, and slight proof of undue influence or fraud to set it aside.(p) Where a presumption of imposition exists, e. g., from the fact of the penman of the will taking a pecu- niary benefit under it, the courts exact the most decisive proof of the com- plete absence of influence and excitement at the preparation and making of the asserted will, and must require unimpeachable evidence of unbiassed volition (It) Combe's case, Moore R. 759. (i) Marquis of Winchesters case, 6 Rep. 24; 2 Buls. 211. The same point is put with still greater simplicity by Judge Washington : Had he a disposing memory— was he capable of recollecting the property he was about to bequeathe—the manner of distributing it and the objects of his bounty. (Stevens v. Vanclerc, 4 W. C. C. R. 262.) Proof, however, of intellect having been impaired by disease, or of intellectual feebleness alone, will not avail by itself to defeat a will, when adequate capacity re- mains. Sloan v. Maxwell, 2 Green. Ch. 563; Andrews v. Weller, ibid. 604; Dunick v. Reichenback, 10 S. & R. 84. The cases will be found enumerated in 1 Powell on Devises, 127; Shelford on Lunacy, 275-6 ; 4 Kent's Com. 566 ; 1 Jarrnan on Wills, 28. See also Converse v. Converse, 21 Vt. 168 ; Home v. Home, 9 Ired. 99; Harrison v. Rowan, 3 W. C. C. R. 580; Grabil v. Barr, 5 Barr, 441; Denn v. Johnson, 2 South. 454; Kinne v. Kinne, 9 Conn. 102 ; Ford v. Ford, 7 Humph. 92; Howard v. Coke, 7 B. Monr. 665 ; Blanchard v. Nestle, 3 Denio, 37; Modern Probate of Wills, 91. In Scotland an arbitrary test is applied, it being there provided that no settlement or gift executed after the commencement of the disease of which a person dies, except those in the ordinary administration of the estate, shall be valid. If the testator sur- vives sixty days afterwards, or has beeu to market unsupported, the will is validated. Bell's Diet. Death Bed. (j) Hacker v. Newborn, Style, 427. (k) Ex parte Fearon, 5 Ves. 633. (/) Scribner v. Crane, 2 Paige C. C. R. 147. (/«) Dietrick v. Dietrick, 5 S. & R. 207 ; Nussear v. Arnold, 13 S. & R. 323; Patter- son v. Patterson, 6 S. & R. 55. (n) Denton v. Franklin, 9 B. Monr. 28. (o) Marsh v. Tyrel, 2 Hag. Eo. 84, 141. (p) Brydges v. King, 1 Hag. Ec. R. 256; Goble v. Grant, 1 Green C. R. 629 ; Baker i'. Lewis, 4 Rawle, 356.
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