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Herbert v. Berrier et al.

instance, that the subscribing witnesses were competent. The presumption is in favor of their competency, and this prevails until overcome by evidence or countervailing presumptions.

It is not necessary to prove a formal request to the witnesses. It is enough to show that the will was subscribed to as such by the testator in their presence, and by them as witnesses in the conscious presence of the testator. Matter of the Will of Allen, 1 Am. Prob. R. 580. See also authorities cited in note to Mandeville v. Parker, 1 Am. Prob. R. 106 ; Turner v. Cook, 36 Ind. 129; Brown v. McAlister, 34 Ind. 375; McElfresh v. Guard, 32 Ind. 408; Cheatham v. Hatcher, 32 Am. R. 650.

Proof of the genuineness of the signatures of the attesting witnesses was properly made by proving their handwriting. It may be inferred from evidence of handwriting, that signatures are genuine. A party who shows that a name is in the handwriting of the person whose signature is in question, has a right, in the absence of anything to the contrary, to have an inference of its genuineness made in his favor. Nothing being shown to the contrary, it was proper to infer from evidence that the signatures were in the handwriting of the persons whose names were annexed as subscribing witnesses, that the signatures were written by them. But, if this was not so, the affidavit of one of the witnesses shows that the subscribing witnesses affixed their signatures in her presence, as well as in that of the testator, so that there can be no doubt as to the genuineness of their signatures.

Judge Redfield says that “The general rule is that the capacity to execute wills extends to all.” 1 Redf. Wills, 8. In Sloan v. Maxwell, 2 Green Ch. (N. J.) 563, it was said, that it is a “fixed principle, that whenever the formal execution of a will is duly proved, he who wishes to impeach it on the ground of incompetency, must support by proof the allegation he makes, and thereby overcome the presumption which the law raises of the sanity of the testator.” Rush v. Megee, 36 Ind. 69; Banker v. Banker, 63 N. Y. 409; Baxter v. Abbott, 7 Gray, 71. The appellant contends that our statute requires that affirmative

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Herbert v. Berrier et al.

evidence of testamentary capacity must be adduced before the will can be admitted to probate. The basis of this contention is supplied by section 30 of the act concerning wills, which reads thus: “If it shall appear from the proof taken, that the will was duly executed, the testator at the time of executing the same competent to devise his property, and not under coercion, such testimony shall be written down, subscribed by the witness examined, and attested by said clerk with his signature and seal of office; and the will, with such testimony and attestation, shall be recorded by such clerk in a book kept for that purpose, and certified by him to be a complete record.” This section is to be taken in connection with other provisions of the same act, and, when so taken, can not be construed to overturn settled rules of evidence, and to require a proponent to show, not only testamentary capacity, but also freedom from restraint. We think the natural presumption of competency must prevail, unless something countervailing it appears. In the statute defining murder, the provision expressly refers to persons of sound mind, and yet the courts have universally held that sanity is to be presumed until the contrary is made to appear. The proof of the formal execution of the will, together with the contents of the will itself, may well be held to supply grounds for inferring the competency of the testator. We can not believe that the Legislature ever intended that the proponent of a will should, in the first instance, prove sanity and freedom from coercion. The language of section 27 of the statute lends strong confirmation to this view. It is there provided : “Before a written will shall be admitted to probate or letters testamentary, or administration with the will annexed, shall be granted thereon, such will shall be proven by one or more of the subscribing witnesses, or if they be dead, out of the State, or have become incompetent from any cause since attesting such will, then by proof of the handwriting of the testator, or of the subscribing witnesses thereto.” This contemplates no more than due proof of the formal execution of the will, and clearly

Herbert v. Berrier et al.

means that when such proof is made, the will shall be admitted to probate. It certainly does not mean that in advance of any imputation of want of capacity, or of a showing of the presence of duress or undue influence, the proponent shall give evidence of sanity and liberty of action.

We are not called upon to decide what the rule would be in case of an objection interposed before the admission to probate. If the objection had been made before probate, there would be much more force in the position, that the proponent must prove testamentary capacity and the absence of coercion. But upon this point there is great diversity of opinion; the weight of authority seems to be that even in such cases the proponent is not bound, in the first instance, to give evidence of capacity and freedom from restraint.

Where, as in the case before us, the will has been admitted to probate, is reasonable on its face, and its execution unattended by suspicious circumstances, some evidence of want of capacity and of the presence of fraud or coercion must be given by the party who attacks the will, before the party who propounds the will can be called upon to prove, what the law presumes, the presence of capacity and the absence of fraud. It would be an unnatural and strained perversion of the rules of logic to hold that a party must, where nothing is shown in opposition, proceed to establish what the law presumes; where the ultimate burden shall rest is another question.

The thirty-ninth section of the statute, giving the right to contest wills which have been admitted to probate, very clearly casts upon the complainants the burden of giving some evidence of coercion or incapacity before the party supporting the will can be required to give evidence of capacity and freedom from undue influence. This case is governed by that section, for it is an action brought to overthrow a will already admitted to probate.

The proponents proved the handwriting of the attesting witnesses, and this was sufficient under the provisions of the statute already quoted. The evidence did much more than

The State r. Fry.

this, for it directly proved that the witnesses subscribed their names to the paper in the presence of the testator. The affi

. davit of Salome Kouts shows the actual signing by the witnesses of their names, and shows also that one of them, at the time, signed the testator's name pursuant to his request. The evidence upon this point could not well be stronger.

The statute makes express provision for proving the execution of wills where the witnesses are dead, or out of the State. The evidence brings the case fully within the provisions of the statute. It is clearly shown that one of the subscribing witnesses was dead, and that the other was out of the State and could not be found. This was amply sufficient to permit the introduction of evidence of the handwriting of the witnesses.

We have considered all the questions which can properly arise under the allegations of the complaint, and find no error in the record.

The complaint is in many respects subject to criticism. The general allegation, that “the will has been admitted to probate unlawfully and without sufficient proof,” is too vague and uncertain. The defects in the proof, or the facts making the "probate unlawful," should be stated. Mere conclusions,

” such as that stated, are not sufficient; there should be allegations of substantive facts.

Judgment affirmed.
Petition for a rehearing overruled.

No. 10,116.

THE STATE v. FRY. Criminal Law.—Ticket-Sculper.-Special Tickets.---Statute Construed.-Sec

tion 8 of the act of March 9th, 1875, regulating the issuing and taking up of railroad tickets, etc., 1 R. S. 1876, p. 259, exempts from the operation of its provisions all special tickets, whether half-fare or excursion tickets, or special in any other respect.

The State v. Fry.

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SAME.-A ticket, having stamped upon its face the word “special,” is prima facie exempt from the provisions of said act of March 9th, 1875. From the Marion Criminal Court.

D. P. Baldwin, Attorney General, J. B. Elam, Prosecuting Attorney, and W. W. Thornton, for the State.

Z. K. McCormack, for appellee.

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WORDEN, J.,—This was an indictment against the appellee for selling a railroad ticket without a certificate of authority, as provided for in the act regulating the issuing and taking up of tickets and coupons of tickets by common carriers, etc., approved March 9th, 1875, 1 R. S. 1876, p. 259.

On motion of the defendant the indictment was quashed. The State excepted, and appeals.

It is alleged in the indictment that the ticket was issued by the Cincinnati, Indianapolis, St. Louis and Chicago Railroad Company, was a first-class ticket, and evidenced the right and entitled the holder to be transferred in a continuous passage over certain railroads mentioned, from the city of Indianapolis, in the State of Indiana, to the town of North Vernon, in that State, and thence to Louisville, in the State of Kentucky; that there was stamped across the face of the ticket the word “special.”

The 8th section of the act above mentioned, as we find it printed in the statute book referred to, provides as follows: “The provisions of this act shall not apply to special, halffare or excursion tickets."

It is said that in the enrolled bill, the punctuation is different, there being no comma between the words "special" and“ half-fare;" and it is claimed by the State that the section should be so read as to exempt from the operation of the statute two classes of tickets only, viz.: half-fare tickets and excursion tickets.

But why exempt from the operation of the statute half-fare tickets, or excursion tickets, any more than any other tickets supplied at less than the usual full fare, whether it be more or

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