Volume 1

Wharton and Stille's medical jurisprudence.

  • Francis Wharton
Date:
1873
Catalogue details

Licence: Public Domain Mark

Credit: Wharton and Stille's medical jurisprudence. Source: Wellcome Collection.

    103/924 page 73
    the testatrix was seventy-eight years old, Colt, J., said that the requisite mental qualification to make a will might exist, and be entirely consistent with such a degree of weakness, or such peculiarity, as would make the party the easy victim of fraud and improper influence. He held that it is doubtful whe¬ ther the existence and exercise of undue influence do not necessarily presuppose weakness of mind, and whether the acts of one who was in all respects sound can be set aside on that ground in the absence of proof of fraud or imposition. And it is certain that, however ingenious the fraud or coer¬ cive the influence may be, it is of no consequence, if there are intelligence enough to detect and strength enough to resist them.(^) (/*) Presumptions. (a2) From character of act. [See, as to sanity generally, this presumption discussed infra, §§ 389-410.] § 83. It should be kept in mind, that the question of com¬ petency is intimately affected by the character of the act or instrument which it is sought to annul. A reasonable mar¬ riage, such as that of Lord Portsmouth to his first wife, entered upon under the advice of his family, and to a person every way competent to secure his position and his character from disgrace or injury, may be sustained; while an unsuita¬ ble one, to a woman of light character, will be set aside, when it appears that it was influenced by overpowering authority or trickery. A will making a just distribution of an estate will be held per se strong evidence of disposing capacity, while one turning the testator’s property into an unnatural channel gives at least some presumption to the contrary.(^) This is broadly stated by Sir John Hicoll, in a case(m) where he de- (k) Shatter v. Bumstead, 99 Mass. 112. (Z) Stewart v. Lispenard, 26 Wend. 255 ; Means v. Means, 5 Strobli. 167 ; Roberts v. Trawick, 13 Ala. 68; Couch v. Couch, 7 ibid. 519; Bannatyne v. Bannatyne, 16 Jur. 864, 14 English Law and Eq. R. 581. See Nichols v. Binns, 1 Sw. & Tr. 239. See supra, § 80. (m) Scruby v. Fordham, 1 Addams, 90.
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