40 Vt. 319 | Vt. | 1867
The opinion of the court was delivered by
It is urged that this will, though made by an infant of the age of seventeen years, may have been valid as a soldier’s will, by virtue of some ratification it may have received while the infant was in actual military service, and that its probate may have been, or may hereafter be, justified by proof of such a ratification.
We do not think the statute enables an infant to make a valid will under any circumstances. The statute o'f wills, in general terms, limits the right of disposing of property by testament to persons of full age. After declaring the forms which must be observed in their execution, it provides that “ nothing in this chapter shall be construed to prevent any soldier in actual military service, or any mariner or seaman being at sea, from disposing of his wages, or other personal estate, as he might otherwise have done.” We think the words “ as he might otherwise have done,” refer merely to the mode of execution.
This will was absolutely invalid, and its probate was at the least unauthorized. The disability arose not from unsoundness of mind, the question with relation to which, must always be a matter of judgment. It was an absolute disability depending upon an arbitrary fact which is not disputed. If the statute had limited the right to make wills to males, the probate of the will of a female would have been as easily justified as this. Still we are not now prepared to say that the probate of the will of a person, who should afterwards prove to be a minor, is void, or that it could, except in extreme eases, or for that reason alone, be set aside, or that it ever should be set aside if the fact of the infancy was doubtful, or had been contested and tried in the probate court, or if the heir at law had had actual notice of the presentment of the will for probate. These points we do not discuss or decide.' We think the facts of this case are suffici
The question as to whether usually this proceeding should not be' by petition, instead of a bill in chancery, is. not legitimately involved in this case, because the necessity of an injunction upon the insolvent defendant, Aaron Pike, rendered a resort to the court of chancery necessary, even if otherwise it would not be proper.
It is urged that the decree should not in any event be affirmed, but the matter should be left open for the probate court to order a new
It is further insisted, that there may be debts against the infant’s estate, but as the defendant town of Searsburg does not appeal from the decree of the Chancellor, and as the heir at law is entitled to the estate as against the defendant, Pike, we do not deem it necessary to 'discuss the case with reference to this unproved and merely supposable state of facts.
The decree of the chancellor is affirmed, and cause remanded.