Marks & wife v. Bryant & wife

4 Va. 91

• Court: Supreme Court of Virginia
• Decided: May 2, 1809
• Status: Published

Opinions

The examination of witnesses having been finished, Mr. Hay said he was willing to waive his objection to the non-production of the original will, his clients being anxious to have the controversy settled without further delay.

Judge Roane

observed that, on reflection, he was of opinion that the original will ought to be produced, and that it was not in the power of either party to waive it.

George K. Taylor.

The last objection is answered by observing, that the will is good as far as it goes. As to the first, the conditions of the act of Assembly have been substantially, if not literally, complied with.

Judge Roane asked Mr, Taylor if he had inquired into a difference between the stat. 29 Car. II. in England,, and our act of Assembly ; the word “ surprised” being in the former, and not in the latter ? (c)

Mr. Taylor observed,

that the omission of that word in the act of Assembly, shewed the intention of the Legislature to adopt a broader and more liberal rule than that established by the statute 29 Car. II. since they had the act before them when legislating on the subject. He submitted the question, upon the evidence, relative to the state of the decedent’s understanding at the time of his making the will.