James Moore Wayne

“ The inferior evidence to establish the existence of a judicial record must be something officially connected with it, such as the journals of the court, or some other entry, though short of the judgment or record, which shows that it has been judicially made. The burning of an office and of its records is no proof that a particular record had ever existed. ”

“ Under such circumstance of disability to pursue her rights in her father's estate with the aid of the law, no presumption can rightly be made against her. The rule in such a case is, that, when a person is under a legal incapacity to litigate a right in a court of justice, and there has been no relinquishment of it by contract, a release of it cannot be presumed from circumstances over which the person has had no control, happening before the incapacity to sue has been removed. ”

“ I was in the house of Isaac Bledsoe, my father, at the time; there was difficulty in getting light; at length Hugh Rogan went to the kitchen and got fire; immediately after, Anthony Bledsoe was shot; he was drawn into the house, having fallen from the shot; when the light came, his wound was examined and discovered to be mortal; he was in extreme agony; no mortal could have suffered more ”

“ To find this to be the true will, the jury must find that the clause, 'my lands to be equally divided amongst my children,' was not Anthony Bledsoe's will, but inserted without his instruction or knowledge, and contrary to his intention, wish, and will.
'A paper writing, purporting to be a man's will or deed, executed and proved according to the forms of law, shall always be deemed such, unless positive proof of the contrary is made out clearly. ”

“ The words are, 'to each of my daughters a small tract of land,' immediately after the testator's declaration that he desired his estate to be equally divided among his children. Estate is a comprehensive them, including all real and personal estate, and children has a legal significancy, extending, as the case may be, to grandchildren and even illegitimate children, but never permitting the term sons to be substituted for it, unless such shall be the plain intention of a testator in his will in favor of sons to the exclusion of daughters. ”

“ The only safe rule is, that, where a will is doubtful and uncertain, it must receive its construction from the words of the will itself, and no parol proof or declaration ought to be admitted out of the will to ascertain it. ”

“ Weatherhead was a feme covert until 1843, and therefore the law of presumption does not apply. A married woman in England formerly could not make a deed, but could convey only by fine, which is matter of record. In this country she can convey by deed and private examination, which deed can be lost or destroyed, or she may be bound by partition ordered by a court of chancery, the records of which have been burned and destroyed. ”

“ Caty went to her husband, Isaac Bledsoe, and told him he must see his brother, and suggest to him that he must die, and that some provision should be made for his daughters; for if he should die without a will they would get no land, and the chief of his estate consisted in lands; that this suggestion was immediately made to Anthony Bledsoe by Caty Bledsoe, in the presence of Isaac Bledsoe; and Anthony Bledsoe said to his brother, that, if he would get pen and ink, he would make his will ”

“ Probates of wills in the County Court are sufficient testimony of the devise of real estate, and attested copies may be given in evidence in the same manner as the originals; but the original will must be produced under the requisitions of the proviso of the sixth section of the act of October, 1784. The probate of the paper writing called the will of Anthony Bledsoe before the County Court of Sumner, in October, 1788, was in common form, where the devisees and next of kin had no notice. ”

“ For this cause it is, that statutes of limitation do not run against them during coverture. The plaintiff here was protected by that of the State of Tennessee. No presumption could be made to defeat its protection, from any conduct imputed to her, or from her husband and herself having had for any length of time a part of the testator's lands in their possession, or from any sale made of it by her husband in which she may have joined. The law will presume it to have been done under the coercion of her husband. ”

“ The possession by defendants was for more than forty years, and none of the daughters or their husbands, as devisees, ever claimed under the will according to what is now contended for the plaintiff.
2dly. The Circuit Court did not err in their instructions to the jury upon the law of presumption. This question of presumption did not arise at all in the case decided in 9 Humphreys, before mentioned. The doctrine of presumption has been frequently discussed in the courts of Tennessee. ”

“ The defendants held in their own right, by deeds of conveyance purporting to pass the legal title; they did not claim under the will. Blight's Lessee v. Rochester, 7 Wheaton, 535. This paper writing is introduced to show that the land sued for was devised to Mrs. Weatherhead, and that thereby she had a title to the same. The animus testandi, the design and intention that the particular paper should be the last will and testament of the deceased, is the great and essential requisite of a will. ”

“ He was in his own fort, between two log-houses, in a passage, where he received the mortal wound and fell, another (his servant) being killed at the same fire; that he was carried into one of the houses. ”