Huff et al., vs. Huff.

an attesting, though a subscribing witness, and the will in that case was void. The reply of the Judge was, "that is the law, gentlemen, I give you that in charge. But furthermore, I charge you that if he was introduced to him and looked at him, the law implies that he knew whether or not he had testable capacity."

The argument in this case has been pressed upon the meaning of the word attest in the Code, that it implies relation to the capacity of the testator at the time of the execution. The rule laid down as the judgment of this Court, in Potts vs. House, is simply to the effect "that the opinions of subscribing witnesses to a will as to the sanity of the testator are admissible without stating the facts upon which they are founded." And if the opinion of Alexander had been invoked in this case as to the sanity of the testator, the fact that he did not know him would have been a good objection to his giving his opinion; but to say under our Code that the attesting means simply witnessing and the subscribing only that such witness shall sign his name and the factum of the execution is the object of the attestation and subscription, that such probable inability to testify as to mental capacity rendered the will void, is not and never was the law of this State.

This would be to reverse all rules of law, and to hold that, because a subscribing witness, called in to prove the mere exexecution of a will, did not know the testator sufficiently to know his mental capacity, it was to be presumed he was insane or incompetent, and declare his will void.

are pre

The reverse of the rule is true, that all men sumed to be sane until the contrary is proved. We recognize the doctrine that, except subscribing witnesses to a will, none but experts are competent to testify as to their opinion of the testator's capacity. But we do not hold that even they are not subject to the closest cross-examination upon the grounds, facts and reasons for their opinions, of which the jury are the judges. And by close examination into the principles enunciated in the judicial expositions of the law on the subject, it will be found that the expression of the

Huff et al., vs. Huff.

opinion by subscribing witnesses is admitted more upon the presumption of knowledge of a fact than the caprice of an opinion. The two may be blended and the one include the other, but the very case is a demonstration of the difference.

We do not hold with the Judge below, that this request was the law. We do not so regard the office of a subscribing witness to a will, under our Code, that he is called on to adjudge the mental capacity of the testator. His act is to bear witness to the execution of the paper.

4. The addition of the Judge to the charge which is here assigned as error, we take in connection with the charge itself, and looking at the testator being sufficient to imply testable capacity, means, that all men are presumed sane-and being introduced to a man and seeing him personally, would not change the presumption, but strengthen it. But as the issue was not in controversy and did not affect the merits of the case, and seems to express only, such a presumption as met the proposition of the charge, that the will was void by holding him to be a good subscribing and attesting witness, and that his introduction and cursory examination of him established only this much and did not go to the jury to weigh in their verdict, we do not consider the remark such error as will invoke the reversal of this Court of the judgment below.

Judgment affirmed.

INDEX.

[The Head-notes, except those followed by ("R,") are made by the

Judges.]

ACCIDENT-See Arbitration and Awards, 10.

"Insurance, 4.

ACCORD AND SATISFACTION.

See Novation.

"Ordinance of 1865, 2.

ACQUEDUCTS-See Water-courses.

ACTIONS.

If a widow die pending a suit by her for the homicide
of her husband, the right of action for such homicide
survives to the children, and in such last suit the
measure of damages is the injury to the children, to
be measured, as in the case of the widow, by a reason-
able support for them, according to the condition in
life, etc., of the father, and according to the expecta-
tion of his life as found by the mortuary tables.
David vs. S. W. R. R. Co........

ACTS OF CONGRESS.

See Removal of Cases to U. S. Courts.

ADMINSTRATORS AND EXECUTORS.

1. M., as the administrator of H., in January, 1865,
sold, at public sale, under an order of the Court of
Ordinary, certain parcels or tracts of land, as the pro-
perty of his intestate, a portion of which were pur-
chased by one of the distributees of said estate, in his
own right, and a certain other portion thereof was
purchased by said distributee as the guardian of the
other distributees of said estate, and the administra-
tor took the individual notes of the purchasers, in his

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own right, and as guardian, for the amount for which
the land sold, without security, and executed deeds
conveying said land to the purchasers thereof, and af-
terwards filed a bill, alleging that at the time he sold
the land, he took the individual notes of the purcha-
sers, and executed the deeds of conveyance, that he
believed that the assets of the estate, on final distri-
bution, would be sufficient to cover the amount for
which the land sold, as the distributive shares of the
purchasers thereof, but that the emancipation of the
slaves belonging to said estate, had left the said pur-
chasers and distributees with scarcely any means to
pay the purchase-money for said lands, save the land
itself, and the prayer of the bill is, that the purcha-
sers of said land may be restrained, by injunction,
from selling the same, and that the deeds executed to
the purchasers by the complainant, as administrator,
may be cancelled, and that the purchasers of the land
sold at the administrator's sale may be decreed to con-
vey the lands back to the administrator. It appears
on the face of the complainant's bill, that there were
other lands and other property belonging to said es-
tate, the amount and disposition of which, by the ad-
ministrator, is not shown:

Held, That since the vendor's lien has been abolished in
this State, the administrator has no equitable lien on
the land for the unpaid purchase-money, and that he
does not make such a case by his bill as entitles him
to the relief prayed for, and that the demurrer to the
bill was properly sustained by the Court below. Ma-
hone vs. Howard et al......

2. Where an administrator was sued in a county differ-
ent from that in which he resided, and he acknowl-
edged service of the writ and filed no plea of any
kind, although the suit was up on an open account
over twenty years old, and judgment was taken by
default, as on personal service, without proof:
Held, That whatever may be the effect of such a judg-
ment, as against the administrator, personally, it does
not bind the third persons or the estate sought to be
charged. And the surety on the administrator's bond
has such an interest in setting the same aside that he
may file a bill to enjoin its proceeding against the ef-
fects of the estate, and for the purpose of having it
declared void as against said estate, and as against

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