Testatrix

“ Stone's testimony is mainly concerning the condition of the testatrix during her last sickness, and had a tendency to show that she was in a drowsy condition, if not unconscious, during the last fourteen days of her life, though as she was at the house of the testatrix only every other day, and then for but a few minutes at a time, her testimony was properly considered by the jury as of no great significance and overborne by that of the physician and other witnesses. She does testify to one thing in reference to Mrs. Johnson, which will be considered hereafter. ”

“ Reading the twenty-second clause in connection with the other parts of the will, and in the light of the attending facts, it is quite clear that the words 'take effect' are used by the testatrix as synonymous with or equivalent to the word 'executed,' with which they are coupled, and not as signifying that the devises and bequests shall not vest immediately, but only that they shall not be paid or carried out until the debt contracted by the testatrix for the construction of the Hodgson Memorial Hall shall have been paid out of her estate. ”

“ A naked power to two persons by name, cannot be executed by one. [3]
The intention of the testatrix to give this property to charitable institutions, was never perfected. She intended to speak only through persons selected and informed by both Marsh and Guild. There being no such persons, there is no expressed will of the testatrix in behalf of the institutions who are respondents. ”

“ I submit that the circumstances of the so-called disappearance of the testator present nothing out of the ordinary. The testator is a man of ample means, without any responsibilities to fetter his movements, and has been in the constant habit of traveling, often into remote and distant regions. The mere fact that he has been absent somewhat longer than usual affords no ground whatever for the drastic proceeding of presumption of death and taking possession of his property. ”

“ A testator has a sound mind for testamentary purposes, only when he can understand and carry in mind, in a general way, the nature and situation of his property, and his relations to the persons around him, to those who naturally have some claim to his remembrance, and to those in whom, and the things in which, he has been chiefly interested. He must understand the act which he is doing, the disposition which he wishes to make of his property, and the relation in which he stands to the objects of his bounty and to those who ought to be in his mind on the occasion of making his will. ”

“ 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. ”

“ This was his convenient state of mind when, late one night, a step came up the stairs, and a hand passed over his door feeling for his knocker, and then one deep and solemn rap was rapped that might have been a spring in Mr. Testator's easy-chair to shoot him out of it; so promptly was it attended with that effect.
With a candle in his hand, Mr. Testator went to the door, and found there a very pale and very tall man; a man who stooped; a man with very high shoulders, a very narrow chest, and a very red nose; a shabby-genteel man. ”

“ 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. ”

“ Justice COLT said: 'The declarations of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will, whenever this issue is presented. So it is uniformly held that the previous declarations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condition, are mainly ascertainable through the medium afforded by the power of language. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Ordinarily, a testator is presumed to have intended to dispose of all of his property, and if a will can be so construed, this will be done, rather than to adopt a construction which will make him testate as to part of his property and intestate as to another part. If there are two irreconcilable parts, the latter part is the one which prevails. Words are to be understood in their ordinary meaning, unless there is something to clearly show contrary intent. ”

“ The petitioner asks permission to presume the death of the testator in order that the testator's property may be distributed among the beneficiaries under the will. The granting of such permission involves us in the gravest responsibility. An ill-considered decision might be productive of a serious injustice to the testator, an injustice that could never be remedied. Hence it is incumbent upon you to weigh the evidence with the greatest care, to come to no decision without the profoundest consideration of all the facts. ”

“ A further test has to be applied by each investigator for himself. When we have ascertained, as far as possible, on what evidence our knowledge of an alleged fact rests, we have to consider the inherent probability of the allegation. Is the statement about it in accordance with the general workings of human nature, or with the particular working of the nature of the persons to whom the action in question is ascribed? Father Gerard, for instance, lavishly employs this test. ”

“ You will remember, gentlemen, that it was either at Eltham or Woodford that the testator was last seen alive.
"And now observe the completeness of the coincidence. These human remains, as you will be told presently by the experienced and learned medical gentleman who has examined them most exhaustively, are those of a man of about sixty years of age, about five feet eight inches in height, fairly muscular and well preserved, apparently healthy, and rather stoutly built. ”

“ The supposition that the testator is dead is not only more probable than that he is alive; I submit it is the only reasonable explanation of the circumstances of his disappearance.
"But this is not all. The presumption of death which arises so inevitably out of the mysterious and abrupt manner in which the testator disappeared has recently received most conclusive and dreadful confirmation. ”

“ A medical practitioner may be called upon to give evidence as to the capacity of a testator to make a valid will. An ordinary person witnessing a will does so to fact only, but if a medical man do so it implies that he was of the opinion that the testator was fit to make a will and of a sound and disposing mind. In making an examination of a person for fitness to make a will, the medical man must endeavour to find out if the testator understands the nature of his action, and all the details associated with it ”

“ The fatuous corporation, who had made game of the testator during his life, and played their stupid jests on him, now became keenly alive to their own interests. A notice appeared offering a substantial reward for news of it, with a reward to the sender of the codicil, if he came forward. Fresh stories, too, came up from Gloucester. It was rumoured that Mr. Chadborn and a companion had been seen, just after the death, busy tearing up and burning papers in the testator's room. This was duly charged, and, strange to say, admitted. They were unimportant papers—old lottery-tickets, &c. ”

“ The first prescribes a new rule of construction of wills. They are to be deemed to speak as of the time of the death of the testator; but power is reserved to him to set aside this rule by manifesting in his will an intention not to have it applied. The real substance and effect of the second section is to enable certain testators to pass their after-acquired lands by expressing an intention to pass them.
By force of the first section, the law prescribes a rule of construction, which a testator may set aside. ”

“ It was perfectly unnecessary. It contained no new matter; it expressed no changed intentions; it met no new circumstances, as known to the testator. In short it was not really a new will at all, but merely a repetition of the first one, drafted in different and less suitable language. It differed only in introducing a certain ambiguity from which the original was free. It created the possibility that, in certain circumstances, not known to or anticipated by the testator, John Blackmore might become the principal beneficiary, contrary to the obvious wishes of the testator. ”

“ General directions for the use of the Stanford Revision have been fully set forth in chapter VIII of The Measurement of Intelligence. As this guide is only a handbook of procedure for the tests themselves, I shall not here undertake either to summarize that chapter or to add to it. I trust it may safely be assumed that no responsible person will attempt to apply the tests who is not familiar with the book which explains them and presents the general considerations which should govern their use. ”

“ Moreover, the testator is no less a person than the very ingenious conveyancer, Lord Chancellor of England, and author himself of that famous “Handy-book,” in which men are exhorted in the most convincing manner to make due and thorough disposition of their earthly possessions. ”

“ The gin gone, and Mr. Testator wondering what was to follow it, the visitor rose and said, with increased stiffness, "At what hour of the morning, sir, will it be convenient?" Mr. Testator hazarded, "At ten?" "Sir," said the visitor, "at ten to the moment, I shall be here." He then contemplated Mr. Testator somewhat at leisure, and said, "God bless you! How is your wife?" Mr. Testator (who never had a wife) replied with much feeling, "Deeply anxious, poor soul, but otherwise well." The visitor thereupon turned and went away, and fell twice in going downstairs. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ A testator might by his will: (1) exclude the Orphan Chamber; (2) remit the duty of accounting; but such directions were not always effectual. Gr. 1. 9. 3; Van Leeuwen, 1. 16. 3 and 6; Voet, 26. 7. 4; V. d. K. Th. 135–8. In the latter case it was sometimes permitted to furnish an inventory closed and sealed; and Cape Law allowed this course: (a) when the testator had so directed; (b) in the case of a surviving spouse whom the deceased spouse had appointed tutor and boedelhouder. Ord. ”

“ It is possibly true that even if the examiner is tactful and prudent an unfavorable attitude on the part of the subject may occasionally affect the results of a test to some extent, but it ought not seriously to invalidate one examination out of five hundred. The greatest danger is in the case of a young subject who has been recently arrested and brought before a court. Even here a little common sense and scientific insight should enable one to guard against a mistaken diagnosis. ”