The Law of Wills for Students
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J. Eq. 522 ; Whitney v. Twombley, 136 Mass. 145.
2 Coke, Litt 42 bj Jarman, Wills, 35.
'COMPETENT' TESTATOR. 73 one has always been deaf, dumb, and blind. Capacity to understand sufficiently for the purpose of making a will may well be present, and sound methods of educa- tion have shown it to be present in particular cases.
The consequence is that inquiry should be allowed in every case of the execution of a will by such a person to show whether, as a matter of fact, he had the required capaci...ty. At the most, in reason, there can be no more than a prima facie presumption of want of capacity in the testator. But such presumption there probably is.
It follows, a fortiori, that blindness does not consti- tute incapacity to make a will ; all that the courts require for allowing probate of a will of one blind is satisfactory evidence that the testator knew and approved of the contents of the instrument,^ as, for instance, that the contents of the will were properly read over to him.^ Of course, too, inability to read is no evidence of testamentary incapacity; as in the case of blind testators, it is only necessary, in regard to the testator's inability to read, to make it plain to the court that he understood the contents of the will." Passing from cases of infirmity of the senses which inform the brain to the brain itself, that is, to the real seat of capacity for thinking, it is to be Capacity a rela- observed of the subject as a whole that tes- *"'® """S- tamentary capacity has come to be looked upon as a 1 In re Axford, 1 Swab.
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To quickly assess the difficulty of the text, read a short excerpt:
J. Eq. 522 ; Whitney v. Twombley, 136 Mass. 145.
2 Coke, Litt 42 bj Jarman, Wills, 35.
'COMPETENT' TESTATOR. 73 one has always been deaf, dumb, and blind. Capacity to understand sufficiently for the purpose of making a will may well be present, and sound methods of educa- tion have shown it to be present in particular cases.
The consequence is that inquiry should be allowed in every case of the execution of a will by such a person to show whether, as a matter of fact, he had the required capaci...ty. At the most, in reason, there can be no more than a prima facie presumption of want of capacity in the testator. But such presumption there probably is.
It follows, a fortiori, that blindness does not consti- tute incapacity to make a will ; all that the courts require for allowing probate of a will of one blind is satisfactory evidence that the testator knew and approved of the contents of the instrument,^ as, for instance, that the contents of the will were properly read over to him.^ Of course, too, inability to read is no evidence of testamentary incapacity; as in the case of blind testators, it is only necessary, in regard to the testator's inability to read, to make it plain to the court that he understood the contents of the will." Passing from cases of infirmity of the senses which inform the brain to the brain itself, that is, to the real seat of capacity for thinking, it is to be Capacity a rela- observed of the subject as a whole that tes- *"'® """S- tamentary capacity has come to be looked upon as a 1 In re Axford, 1 Swab.
What to read after The Law of Wills for Students?
You can find similar books in the "Read Also" column, or choose other free books by Bigelow, Melville Madison, 1846-1921 to read onlineMoreLess
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