Correll & others } vs } Will Case-- M. Daniel & others }
1 General remarks on the law of Wills--
2. Answer the particular points and objections made by the other side--See notes taken while they were speaking--
3. Read from the authorities and settle on a +definition+ of "Sound mind and memory"--
4 Show that in this case, the Testator had such "+Sound mind and memory+" at the time of making the Will--
1 By his asking D^r Randall to write his Will.
2. His reply to M^{rs} Herron*, when she saw* he was too sick & weak to make Wills.
3. His saying his Will was already made, and getting roll of blank paper--
4 His getting the package of t.i.tle papers--
5 His making first provision for his wife; and charge upon Sutcliff for her and his sisters--
6 His deciding correctly, as to the "+long-way+* of the land*
7 His providing that James should pay rent to his mother.
8 His decision as to what was to be done with the home place--
9 His reply when Correll proposed that all should leave the house--
10 His calling for Robert"s widow; and +so+ +asking+ the land to be given to her children.
10-1/2 His recollection of his enmity to Correll & M. Lutiro*.
11 His objection that any of his own family should be Administrator.
12. His suggesting of Hamm* for Administrator
13 His asking Cyrus Correll & Samuel Havener to witness the Will--
Add to all this his long settled purpose to make, substantially, such a Will--Quote authorities--
His eagerness about it the night before, & on the day the Will was made--his being reminded of it the day +after+--and still remaining quiet till his death--
The Will is unquestionably as it would have been, if it had been made before his sickness.]
Then a copy of the will and the evidence of sixteen witnesses, after which the following page of authorities:--
Ill.u.s.tration: The declarations of the Testator long before his sickness, to make such a Will as he finally did make, are admissable, and weighty evidence in support of the Will
7 Ala. 55 5 Strob. 167 7 Humph. 320 7 Ala. 519 6 Geo. 324.
Where an influence is acquired+ over a testator, by kind offices, or persuasion, unconnected with fraud, the Will made under such influence, would not be set aside--
2 N. J. 117 5 Strob. 167 3 Strob. 44. 552.
6 Geo. 324.
3 Denis 37.
1 Rich. 80 . Cheve, 37.
2 J.J. Mav. 340.
3 SvR. 267 1 Hanrig* 454.
2 Do. 375
A lower degree of of intellect is requisite to make a Will than to make a contract.
21 Vt. 168 9 Iren. 99 6 Geo 324 7 B Mon. 655 3 Denis 37 9 Conn. 102. (over, on the start*)
On "+Sound mind and memory+" and also on "+opinions+" of witnesses, see.
Sowe vs Williamson 1 Green"s Ch. 82 Stoan vs Maxwell 2 Green"s Ch. 563.
Hunt"s heirs vs Hunt 3. B. Mon. 575 M. Daniel"s Will 2. J.J. Mar 331
Note--Hunt"s heirs vs Hunt, above cited, contains an excellent form of an instruction to be given to a jury, as to the weight and to the opinions of the witnesses--][M]
[M] This was evidently written twice by Mr. Lincoln for it seems to be the corrected page of one in the Collection of General Orendorff. This corrected page has not the first allegation found in the rough draft: "The widow of the testator is not a competent witness. II Hump. 565."
One of the opposing attorneys in the case was Mr. Lincoln"s former law partner, Judge Stephen T. Logan, who was the acknowledged leader of the Illinois Bar for many years and from whom Mr. Lincoln derived more benefit than from any other.[N]
[N] Mr. Lincoln"s first partner, John T. Stuart, enjoyed telling of his own arrival in Springfield in 1828 from Kentucky; how the next morning he was standing in front of the village store wondering how to introduce himself to the community, when a well-dressed old gentleman approached him, who, interesting himself in his welfare, inquired after his history and business. "I am from Kentucky," answered Mr. Stuart, "and my profession is that of a lawyer, sir. What is the prospect here?"
Throwing back his head and closing his left eye the old gentleman reflected a moment, then replied: "Young man, d---- slim chance for that kind of a combination here."
That there was a chance for that combination in Springfield has been most conclusively proven. Lincoln"s three law partners at that place as well as himself were all from Kentucky, to say nothing of other prominent members of the bar of Springfield who came from the Blue Gra.s.s state.
[Ill.u.s.tration: +Judge Logan+ resumes after dinner.
Wants the jury to watch me +very closely+.
Says some Judges decide one way, and some another, in Will cases--
Comments on what pa.s.sed between Testator & Mrs Herron, the day +after+ the Will was made--
Jonathan M. Daniel--"how* sixteen feet high"--
Comments on what is "a sound memory"
Comments on the fact that the Will was not in strict conformity to his long expressed points* now*.
Comments on fact of several of the boys having died--
Jew"s notion* that names* be perpetuated* on the land