Testator

“ My learned friend points out that the testator notified nobody of his intention of going away and has acquainted no one with his whereabouts; but, I ask, whom should he have notified? He was responsible to nobody; there was no one dependent upon him; his presence or absence was the concern of nobody but himself. ”

“ If circumstances suddenly arising made it desirable that he should go abroad, why should he not go? I say there was no reason whatever.
"My learned friend has said that the testator went away leaving his affairs to take care of themselves. Now, gentlemen, I ask you if this can fairly be said of a man whose affairs are, as they have been for many years, in the hands of a highly capable, completely trustworthy agent who is better acquainted with them than the testator himself? Clearly it cannot. ”

“ If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarding against, and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books, as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. ”

“ Suppose a testator puts deeds and titles in the hand of his heir, with these words, 'Take the house which I bequeath thee;' there is no man will think that those writings and parchments are that very house which is made of wood or stones, and yet no man will say that the testator spake falsely or obscurely. ”

“ They are good law and good morals. Experience has shown that often, after the death of a testator, unexpected difficulties arise; technical rules of law are found to have been trespassed upon; contests are commenced wherein not infrequently are brought to light matters of private life that ought never to be made public, and in respect to which the voice of the testator cannot be heard either in explanation or denial; and, as a result, the manifest intention of the testator is thwarted. ”

“ If the intention of the testator cannot be carried into effect, precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove all difficulty. ”

“ He has argued with great force and ingenuity that the testator, being a bachelor, a solitary man without wife or child, dependant or master, public or private office of duty, or any bond, responsibility, or any other condition limiting his freedom of action, had no reason or inducement for absconding. ”

“ That this was not present Devise, the Testator taking Notice that I. S. had Son born by the Word first Heir Male, and using the Words when and paying.–2d. That this Contingency was not too remote, because the Testator by the Words first Heir Male, must have meant first Son; and that such a Construction must be made as to carry the Intent of the Testator into Execution.–3d. First Heir Male are Words of Purchase and Designatio Personæ, and Law will supply the Words of the Body in a Will. ”

“ The executor's interest in the testator's estate is what the testator gives him. That of an administrator is only that which the law of his appointment enjoins. The testator may make the trust absolute or qualified in respect to his estate. ”

“ The capacity of the testator, revocation and construction of a will, are governed by the law of the domicil of the testator at the time of his death—except in cases affected by Lord Kingsdown's Act, as he must be supposed to have used language in consonance with that law, unless indeed he express himself in technical language of another country. ”

“ All pretenses of insanity of mind are likewise prevented when a testator is pointed and clear in what he wills; all cavils about words are obviated; the obliged are assured, and they enjoy the benefit, for whom the benefit was intended.
“I, David Vance, of the county of Buncombe, in the State of North Carolina, being of sound and perfect mind and memory, as I hope these presents, drawn up by myself and written with my own hand, will testify,” &c. ”

“ Personalty sworn under a hundred and twenty thousand, all in three per cents, and devised to a certain young lady, the testator's ward, in trust, for the testator's son, or his heirs, when he or they should present themselves. ”

“ In a word the testator having willed something can identify it by means of an extraneous paper if properly designated, but he cannot will the thing away by an extraneous paper no matter how referred to. ”

“ At the time specified in the notice, unless postponement be granted for cause, the proofs of the validity of the will are presented. It must be shown that the testator is dead, that the instrument was executed by him voluntarily, in the manner prescribed by statute, and while he was of "sound mind and disposing memory." Usually it will be sufficient for the two witnesses to the instrument to appear and testify to the material facts. ”

“ It must also be remembered, that a testator often directs that a devisee shall procure the royal license or an Act of Parliament for the change of name, in order to entitle him to the testator's property. ”

“ That a lawyer intending to frame the thing ill,
Couldn’t match the testator who makes his own will.
“Testators are good, but a feeling more tender
Springs up when I think of the feminine gender!
The testatrix for me, who, like Telemaque’s mother,
Unweaves at one time what she wove at another.
She bequeathes, she repeats, she recalls a donation,
And ends by revoking her own revocation;
Still scribbling or scratching some new codicil,
Oh! success to the woman who makes her own will. ”

“ The provisions of the will are tolerably precise and distinct; but it is owing to their particularity and minuteness of detail that the present difficulty arises. Testators, like legislators, succeed best, and most effectually avoid litigation, when they avoid an enumeration of all the various circumstances for which they design to provide. ”

“ I find that that legal estate is in his hands, and therefore any money that is produced by the sale or mortgage of that legal estate is subject to and chargeable with the payment of debts and legacies; and that therefore the money coming into his hands must be money which ought to be applied to the payment of debts and legacies. But then I find that he himself is an executor of the testator; that he himself is the person who ought to hold assets impressed with the liability to satisfy debts and legacies. ”

“ CHAPTER VII SILENT CROSS-EXAMINATION
Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers—and alas! not only young ones—who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. ”

“ The whole effect of the testimony of an expert witness may sometimes effectually be destroyed by putting the witness to some unexpected and offhand test at the trial, as to his experience, his ability and discrimination as an expert, so that in case of his failure to meet the test he can be held up to ridicule before the jury, and thus the laughter at his expense will cause the jury to forget anything of weight that he has said against you. ”

“ He then—that is, after testifying that he is a practising physician—is clothed with the garment of authority. The only way in which his knowledge can [59] be tested is by cross-examination as to his experience and skill, and possibly by contrasting him as he appears upon the witness-stand and his history as he gives it, with other and more or less experienced and skilful men who follow him.
The rule is, that when a witness is produced to give an opinion on a medical question, he is interrogated by the counsel who produces him as to his qualifications. ”

“ It is difficult to say exactly what it is, excepting that constant practice seems to enable a trial lawyer to form a fairly accurate judgment on this point. A skilful cross-examiner seldom takes his eye from an important witness while he is being examined by his adversary. Every expression of his face, especially his mouth, even every movement of his hands, his manner of expressing himself, his whole bearing—all help the examiner to arrive at an accurate estimate of his integrity. ”

“ The first test that the court should apply to determine whether expert testimony is admissible in any event, is, whether the facts relevant to the issues are such that they can be introduced into evidence, and whether the jury are competent to draw a reasonable inference therefrom—not necessarily the inference that the court would draw, or that I would draw, or that the expert would draw; and are they competent to draw a reasonable inference of their own. ”

“ Whatever you say in giving evidence will not render you open to an action for slander.
The privilege of a witness under examination is extended to a witness making statements to a solicitor preparing his “proof.”
State your full name and address. Then say, “I am a registered medical practitioner”; your exact qualifications are immaterial.
Giving Medical Evidence. (Cf. Reports, p. 24.)
“There is matter in manner.” “Tell the truth, and make the truth tell.” “Be the plainest man in the world in the witness box.” “All trifles are not trifling.” ”

“ Counsel is in effect testifying himself, and he is testifying about matters that the witness testified to on direct examination, and it seems clear to us that this cannot be helpful at all to the Tribunal as a matter of re-direct examination.
THE PRESIDENT: Dr. Sauter, is it really proper for you to get the witness to go over again the evidence which he has already given? The only object of re-examination is to elucidate any questions which have not been properly answered in cross-examination. ”

“ Darrow—We are going to try to co-operate with the court and do it expeditiously. Now I am not—I don't suppose the court has considered the question of competency of evidence. My associates and myself have fairly definite ideas as to it, but I don’t know how counsel on the other side feel about it. I think that scientists are competent evidence—or competent witnesses here, to explain what evolution is, and that they are competent on both sides. ”

“ The General Rules Stated as to Subjects for Expert Testimony.—Hence the general rule is, that wherever the facts to be investigated are such that common experience and knowledge of men do not enable them to draw accurate conclusions, but are such that the study and experience of specialists do enable such specially endowed persons to draw accurate conclusions, then the inferences and deductions they have drawn can be testified to by those who qualify themselves before the court as persons having sufficient skill and experience as such specialists to entitle them to give opinions. ”

“ Justice Van Devanter, when circuit judge, that expert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge 'if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation * * *.' United States Smelting Co. ”

“ Before defining what is meant by the term expert witness, or treating of the rules which determine the status of such witnesses in court, and their duties, it seems advisable to introduce the subject by a brief consideration of the distinction between ordinary witnesses and expert witnesses. When medicine and law are united in the purpose of investigating facts, and bringing about a legal determination as to what are or are not facts, they co-operate with each other in this way. ”

“ An accused person who lacks the means to procure legal assistance in his defence has assigned to him by the Court a barrister who will represent his interests and see that they do not suffer from ignorance of legal technicalities.
This principle might well be extended so as to cover the ground of scientific evidence. Under the present conditions the prosecution has unlimited facilities for applying every description of test, but it has not always been easy for the representatives of the accused person to obtain scientific help in criticising the nature of this evidence. ”

“ The science, the art, and the correct estimation of the value of Medical Evidence is the province of Forensic Medicine.
It is hoped that this little book will aid the General Practitioner when he is called upon to offer medical testimony, so that the ancient inquest jury especially may fully appreciate the bearing of the technical facts he narrates. Those who pose as “experts,” should ipso facto be themselves authorities on the matter and the manner of bearing testimony. ”

“ While the Court, or Judge, determines the competency of the witness to testify as an expert, the weight to be accorded to his testimony is for the jury to decide. The testimony of an expert is to be weighed and tested like any other kind of evidence, and is to receive just such credit as the jury may think it entitled to. ”

“ A judge who two testified in front of, however, cannot combine with one of the witnesses that testified in front of him.
Paragraph 13- Each witness must testify on a complete matter. If, however, each testifies on a partial matter, it is meaningless. How so? If they are coming to testify on someone that he is an adult and one testifies that he saw a hair on the right side and the second one testifies that he saw it on the left side, it is of no effect because each witness only testified on a partial sign. ”