22 Me. 438 | Me. | 1843
The opinion of the Court was drawn up by
— -Elizabeth F. Gcrrish, the sister of the appellant, executed a paper, purporting to be her last will and testament, devising her estate to persons other than the appellant, who was her heir expectant. He contends, that, at the
The Judge instructed the jury, that they must be satisfied from the proof, that the testatrix knew, at the time of the execution of the instrument, that it was her will; and that this must appear either from positive testimony, or from circumstances furnishing satisfactory proof of the fact. There would seem to be no question,, that the jury must be satisfied that she was conscious of what she was about, when she executed the instrument, in order to constitute it a will. But the counsel for the appellees insist, that the IegaI__presumption is^ ini the first place, that she was sane; and secondly, that, having executed it in the form in which a will, by law, is mquired — to-ha, executed, she must be presumed to have known what it importecn The~JudgeNUóweverj wasnot specifically requested so to lay down the law to the jury. Yet if what he did say to them was inconsistent therewith, and not in conformity to law, the exceptions must be sustained.
In reference to instruments in writing, the position of the counsel may be regarded as in general well founded; but’ whether the execution of wills does not furnish an exception to them may be questionable. The power to make wills, and the manner of executing them, and their efficacy, depend upon
The next question is, if the testatrix were proved to be sane was it necessary to be proved that she knew the instrument, which she executed, to be an expression of her will in the disposition of her estate ? These instruments arc often prepared for persons, in the last stages of existence, to execute; and at a time when both body and mind have become more or less enfeebled : and when great anxiety and depression have been superinduced; and even, sometimes, when there is but a glimmering of reason flickering in the socket. What can be
We on the whole, therefore, are well persuaded that the instructions of the Judge to the jury were correct. The bill ' of exceptions, and motion for a new trial are overruled ; and judgment must be entered on the verdict.