¶1I concur in the above. I also think that this will should have been held valid upon the facts. It was the testator’s will, drawn as dictated by him, and notwithstanding the draftsman undertook to influence him to change some of its provisions, he had the force of will, understanding, and capacity to resist the influence. He was strong of mind even to obstinacy in defence of his own opinions and rights. He sometimes dozed, it may be, when his attention was not aroused, but when he made this will his mind was clear, his faculties alert, his recollections good, his purpose firm, and his control over himself and his draftsman commanding. The evidence showing his general capacity and soundness of mind is so preponderating that it should have been controlling.
5 N.Y. St. Rep. 95
Doughty v. Doughty
Decided November 15, 1886
New York Supreme Court · decided 1886-11-15
<p>Evidence — Competency of — Code Civ. Pro., § 829 — Partition — Wild.</p> <p>An action of partition involved tlie validity of the will of one P. P.D., the question being as to his competency. The alleged will contained a clause, “ My daughter, H.E.D., now wife of D.J.H., has already received from her share §285.” She was called as a witness of defendants, and this clause read to her. She was asked what she knew about it. Objection was made that she was incompetent to testify under Code Civ. Pro., § 829. The objection was overruled. Held, that the evidence being introduced to show the forgetfulness of the father when he made the will, its relevancy therefore depended on its .being a denial by her of an act said to have been done by him. That the plaintiff having given no evidence as to the fact of the gift, excepting the production of the will, the evidence ivas improperly admitted.</p>
Decided 1886-11-15