Smith v. Dolby

4 Del. 350

• Court: Superior Court of Delaware
• Decided: July 5, 1846
• Status: Published

Opinion

The Court.

cannot be necessary to hear further argument on this point. It has been long considered settled. The construction of the statute of Car. has always been such. (3 Lev. 1; Freem. Rep. S. C.) The statute of frauds requires a signing as well as the statute of wills, and deeds as well as wills might be impaired by a contrary decision. It would also be no little inconvenience to exclude all persons unable to write their names, from the capacity to make a will by signing their mark. But the point has been ruled by this court. In the case of Rash vs. Purnell, 2 Harr. Rep. 448, the Superior Court authorized a verdict in favor of a will signed by the testator’s mark; and that in an issue of devisavit vel non. We re-affirm that decision; and hold that the signing of a will by the testator making his mark, is a good signing.

2. It was not necessary to read the will over; there is sufficient evidence that the testator knew its contents; and he will be taken to have known them unless the contrary appear. (3 Stark. Ev. 1684.) There is no case, except perhaps, where children are entirely disinherited, where any proof of reading the will is necessary. And even this is only in cases of doubtful capacity in the testator. (2 Ecc. Rep. 361; 2 Adams 441.)

3. The execution of the codicil was a republication of the will. It contains a ratification of the will. The loose declarations of the testator as to any slight dissatisfaction with the will is no revocation. The will cannot be revoked unless by cancelling, or by a subsequent valid will. (Dig. 556, 315.)

Verdict for the will.

The register afterwards decreed, disallowing all the costs; from which an appeal was taken; and this court, at the October term, 1847, modified the decree so far as to charge the estate with the costs of the probate before the register, and of the trial on the issue on the point of execution; disallowing all the other costs.