3. WILLS-Testamentary Capacity-Aversion to Children.—Al-
though a testator has sufficient mind to know all about his estate and
the nature and value of it, but has a fixed purpose to give his children
as little interest in it as possible, and his aversion to them is such
that he does not know the natural obligation he is under to them he
has not sufficient testamentary capacity to make a valid will. (Ky.)
McDonald v. McDonald, 579.
4. WILLS-Testamentary Capacity.-It is necessary in order to
have testamentary capacity for one to have such sensibilities as will
enable him to know the obligation he owes to the natural objects of
his bounty, as it is for him to have the capacity to know the nature
and value of his estate and a fixed purpose to dispose of it. (Ky.)
McDonald v. McDonald, 579.
5. WILLS-Evidence of Testamentary Capacity.-A will which
disposes of testator's property in a manner consistent with, and such
as naturally would be expected from a person in the testator's situa-
tion, and in accordance with his privately expressed wishes, is of
itself evidence of his testamentary capacity. (Colo.) In re Shap-
ter's Estate, 216.
6. WILLS-Testamentary Capacity-Reading Will-Presumption.
If a will is prepared at the testator's special request and is
then left in his possession several hours prior to its execution, and
he then signs it in the presence of attesting witnesses, who are
present at his request for that purpose, it will be presumed that he
read it, or that its contents were in some way made known to him.
(Colo.) In re Shapter's Estate, 216.
7. WILLS-Testamentary Capacity-Burden of Proof. The law
presumes testamentary capacity, due execution, and that the will
contains the unrestrained wishes of the testator, and the burden of
proof is upon the person attacking it to show otherwise. (Colo.) In
re Shapter's Estate, 216.
8. WILLS-Testamentary Capacity-Testimony of an Attesting
Witness that he did not believe that the testator was conscious or
knew what he was doing when he made his will, does not impair the
efficacy of such witness' attestation. (Colo.) In re Shapter's Es-
tate, 216.
9. WILLS-Subscribing Witnesses-Time of Signing.-The fact
that subscribing witnesses signed the will before the testator does
not invalidate the will. (Colo.) In re Shapter's Estate, 216.
10. WILLS.-Subscribing Witnesses Attesting a will in the pres-
ence of the testator thereby impliedly state that he is of sound mind
and competent to make a will. (Colo.) In re Shapter's Estate, 216.
11. WILLS-Proof of Execution-Subscribing Witnesses. It is
not incumbent upon the proponent to prove all the facts constituting
due execution of a will by the concurring testimony of the two
subscribing witnesses, and while both of such witnesses must be
examined, the will may be established even in opposition to the tes-
timony of both of them. (Colo.) In re Shapter's Estate, 216.
12. WILLS-Witnesses-Competency-Interest.-A party to the
contest of the probate of a will is, under the statute, incompetent to
testify on the ground of interest. (Colo.) In re Shapter's Estate,
216.
13. WILLS-Witnesses-Beneficiary.-If a will provides compensa-
tion for legal services rendered, and reimbursement for expenses of
an attorney in administering a trust as executor, he is not such a
beneficiary under the will as will render him incompetent to testify
in proceedings to contest the will. (Colo.) In re Shapter's Estate,
216.
14. WILLS Witnessed by Husband or Wife of the Testatrix or
Testator. The incompetency of husband and wife to testify for or
against each other applies to the attestation of wills. Neither, there-
fore, can, as a witness, attest the will of the other. (Ill.) Gump v.
Gowans, 275.
15. WILLS-Equitable Election.-If a testatrix devises to her
husband certain property constituting the homestead of her mother,
if at the time of the death of such testatrix she herself is the owner
thereof, and then makes certain bequests to her mother which are
accepted and received by the latter upon the death of the testatrix,
the doctrine of equitable election does not apply against the mother,
and the husband does not take the homestead under the will. (Minn.)
Appleby v. Appleby, 709.
16. WILLS-Lapsed Legacies. If a will provides for an annual
allowance for the care and maintenance of property so long as it
shall be rightfully occupied by a person, who, under the will, is to
take it upon the happening of a certain contingency, and such con-
tingency does not happen, such provision of the will lapses and be-
comes inoperative. (Minn.) Appleby v. Appleby, 709.
See Annuities; Husband and Wife, 10, 11.
Wills, beliefs, unjust and unfounded, difference between and insane
delusions, 584.
beliefs, unjust and unfounded, whether affect testamentary ca-
pacity, 583, 584.
child, prejudice against without sufficient cause does not affect
testamentary capacity, 582.
insane delusions, aversions which amount to, 584.
hatred of, or prejudice against, one's relatives, however ill-
founded, does not deprive him of testamentary capacity, 582.
right of testator to dispose of his property by does not depend on
the justness of his disposition, 582.
testamentary capacity, prejudice, however ill-founded, does not
establish want of, 582, 583.
testator, capacity required of to support his disinheriting his
relatives, 582.
unnatural dispositions of property as evidence of want of testa-
mentary capacity, 584, 585.
1. WITNESSES-Competency of Executors.-A statute render-
ing parties to a proceeding incompetent to testify therein applies to an
executor made a party to a proceeding to contest the probate of a
will. (Colo.) In re Shapter's Estate, 216.
2. WITNESSES-Competency-Interest.-A witness cannot tes
tify for himself as to matters occurring with his brother since dead,
and thus make evidence for his benefit. (Ky.) Parker v. Catron, 575.
3. WITNESSES - Infants - Competency. An intelligent boy,
twelve years of age, though not able to define the legal obligation
of an oath, but who does know that by being sworn he is required
to tell the truth and will be punished for it if he does not, is compe-
tent as a witness in a criminal prosecution. (Ky.) Bright v. Com-
monwealth, 590.
4. WITNESSES-Competency-Religious Belief.-Whether a per-
son's religious training has been so developed that he comprehends
his responsibility to God for lying does not affect his competency
as a witness. The question is one of credibility and not of compe-
tency. (Ky.) Bright v. Commonwealth, 590.
Privileged Communications.
5. EVIDENCE-Privileged Communication-Physician.-A
ute providing that the testimony of a physician shall not be given
without the consent of his patient is for the protection of the lat-
ter, and he may waive the privilege if he sees fit, and, as a general
rule, those who represent him after his death may also waive it for
the protection of interests which they claim under him. (Minn.)
Olson v. Court of Honor, 676.
6. EVIDENCE-Privileged Communications.-The physician and
attorney of a testator are competent to testify in a proceeding to
probate his will as to facts ascertained in their attendance upon him
in their professional capacity. (Colo.) In re Shapter's Estate, 216.
Transactions with One since Deceased.
7. EVIDENCE-Transaction with One Since Deceased.-One who
asserts ownership of land as against the administrator of a decedent,
who at the time of his death held the legal title to such land, is incom-
petent to testify to any communication or transaction between him-
self and the decedent. (Iowa) McElroy v. Allfree, 412.
See Criminal Law, 2, 3; Trial, 4, 5; Wills, 9-14.
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