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WILLS AND TESTAMENTS-CONTINUED.

solutely vested in the first taker by a previous clause in the will, declared ille.
gal. (Slaughter vs. Slaughter, ante.) Robinson vs. Bishop, 378.

6. The intention of the testator should be derived from the terms of his will, rather
than from the testimony of the draftsman. Ib.

7. A failure of issue is taken to be indefinite, not according to the course of after
events, but as the possibility thereof may exist at the death of the testator. Ib.
8. The words "heir at death," in the will under consideration, as "die without
heir," in Slaughter vs. Slaughter, declared to mean "child" or "descendant." Ib.
9. The decision in the Matter of the Will of Cornelius, (14 Ark. 675;) that where
the testator's name is written to the will by another person, and he makes his
mark, it is a valid subscription within the meaning of the statute, should not be
disturbed. Guthrie vs. Price, 396.

10. It being proven that the will was executed in accordance with the formalities
prescribed by the statute, the burthen of showing that fraud or imposition was
practiced upon the testatrix was upon the parties contesting the validity of the
will; and though in determining such question, the fact that she could not read, and
that the will was not read to her, at the time she signed it, were circumstances
to be considered, it was erroneous for the court to tell the jury, as a matter of
law, that it being shown she could not read, it was necessary to prove
that the will was read to her-they having the right to infer from all the cir-
cumstances that she knew the contents of the will. Ib.

11. If the names of all, or any, or either of a testator's children, or their legal rep-
resentatives, be omitted in his will, he will be considered as having died intestate
as to those omitted, under sections 11 and 12, ch. 180, Gould's Digest, p, 1073,
whether the omission be accidentally or purposely made. Branton vs. Branton,

569.

12. In such case the will is not void, but those having possession of the estate, will
be required to contribute their proportion of the distributive share of the omit-
ted child. Ib.

13. Although the statute authorizes the probate court to decree distribution ac-
cording to the 11th and 12th sections of the chapter on wills, the proper juris
diction of chancery is not taken away; and it is the peculiar province of a court
of chancery to afford relief where contribution is to be made by different per-
sons, or to different persons out of a common fund. Ib.

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