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that he was unaware of the nearness of and that, by continuing in the work, with the scale box to the north rail of track such knowledge, he assumed all risks inNo. 2.

cident to and arising out of his employPrima facie, the location of scales where ment. Upon this point you are instructed the tracks were only the standard distance that, if you believe from the testimony apart, and where a space of less than 2 that prior to the plaintiff's injuries he feet was left for the

the movements of a knew of the existence and location of the switchman between the side of a freight scale box, and of the danger incident to car and the scale box, encumbered, as he the discharge of his duties while passing would be in the nighttime, with a lan- the same on a moving train, if danger tern employed for the purpose of signal- | there was; or if, knowing of the location ing, did not incontestably establish the of the structure, the danger to the employperformance by the defendant company of ees while in the usual discharge of their the duty imposed upon it to use due care duties was apparent, that is, open to obserto provide a reasonably safe place for thevation,—then you are instructed that the use of the switchmen in its employ. And plaintiff, by continuing in the employment 80 far from the proof making it certain of the defendant without complaint, asthat the necessity of the situation required sumed such risks, and he would not, therethe erection of the structure between fore, be entitled to recover. In this contracks Nos. 1 and 2 as existing, there was nection you are further instructed that the proof that the railway company owned unoccupied ground, intended for other tracks, existence and location of the scale box

mere fact that the plaintiff knew of the to the south of track No. 4, justifying the would not, as a matter of law, charge him inference that the distance between tracks with knowledge of the danger, if such danNos. 1 and 2 might have been increased, and the employment of the scales thus ren- ger there was, due to its proximity to the dered less hazardous to switchmen, or that north rail of track No. 2, and whether he the scales might have been removed to a knew of the danger is a question of fact safer location.

for you to determine from a consideration It was, therefore, properly a question of all the facts and circumstances in evifor the determination of the jury whether dence." or not the scales were maintained in a rea- The grounds of the objection to the sonably safe place, and if not, whether the charge being thus stated : plaintiff had notice thereof. The court of

“Because the proof showed that plaintiff appeals was of opinion, and rightly we knew of the location of the track scale box, think, that the dangerous contiguity of and of track No. 2, on which he was riding the scale box to track No. 2, and the extra at the time he was hurt, in reference to a hazard to switchmen resulting therefrom, scale box, and that the same and the locawas not so open and obvious on other than tion thereof was open and obvious to plaina close inspection, as to justify taking from tiff's view, and, being

view, and, being an experienced the jury the determination of the question brakeman, he was charged with notice that whether there had been an assumption of riding on the cars as he did was dangerthe risk. The plaintiff was entitled to as ous, and he assumed the risks thereof, and sume that the defendant company had the court should have so charged the used due care to provide a reasonably safe

jury." place for the doing by him of the work for

This assignment but reiterates contenwhich he had been employed, and as the tions made in connection with the assign

fact that the defendant company might ment based on the alleged error in · not have performed such duty in respect to overruling the motion for judgment. As the scale box in question was not so patent we have already decided that knowledge of as to be readily observable, the court could we have already decided that knowledge of not declare, in view of the testimony of the increased hazard resulting from the the plaintiff as to his actual want of dangerous proximity of the scale box to

the north rail of track No. 2 could not be knowledge of the danger, that he had assumed the hazard incident to the actual imputed to the plaintiff simply because he situation. Choctaro, O. & G. R. Co. v. Mc- was aware of the existence and general loDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, cation of the scale box, it was for the jury 24 Sup. Ct. Rep. 24.

to determine, from a consideration of all The remaining assignment of error ques- the facts and circumstances in evidence, tions the correctness of the following por- whether plaintiff had actual knowledge of tion of the charge to the jury:

the danger. “The defendant claims that the plaintiff We find no error in the judgment of the knew of the existence and location of the Circuit Court of Appeals, and it is af. scale box with which he came in contact, 'firmed.

V.

(196 U. S. 38) ANDREW C. KEELY, Trustee, et al., | fendants were in possession of the lot as Plffs. in Err.,

life tenants under his alleged will.

The validity of the will and the due exeJOSEPH H. MOORE et al.

cution thereof were contested by the plain

tiffs for reasons hereinafter indicated in Wills attestation testamentary capac

the opinion. The trial resulted in a verity-evidence-instructions.

dict for the defendants, upon which judgment was entered, and affirmed by the

court of appeals. 22 App. D. C. 9. 1. The wholly unofficial certificate of a vice

consul, appearing at the foot of a will executed abroad, if otherwise sufficient as an at

Messrs. C. C. Cole, Hugh T. Taggart, testation, may be treated as such by disre- and Leo Simmons for plaintiff in error. garding the superfluous words, "Vice Consul, Messrs. D. W. Baker and Wilton J. United States of America,” appended to his Lambert for defendant in error.

signature. 2. An application for the admission of a testator to an insane asylum, and the certifi.

Mr. Justice Brown delivered the opinion cate of two physicians, upon which the com- of the court: mitment was made, are inadmissible in evi- The validity of the will was attacked dence on the issue of his testamentary ca- upon three grounds: 1st, that it has not pacity, not only because they were unsworn the requisite number of witnesses to pass testimony, but because they were given in a different proceeding and upon a different real estate in this District; 2d, that the issue.

testator was of unsound mind; 3d, that 8. The issue of the testamentary capacity of undue influence had been exercised by one

a person who had once been insane was prop of the designated executors, and others. erly submitted to the jury by instructions

Thomson was a resident of Washington, that, if they found his insanity to be per- but, at the time of and for some years prior manent in its nature and character, the presumption was that it would continue, and to his death was the American consul at that the burden was upon the defendant to Southampton, England. One John H. satisfy the jury, by a preponderance of tes- Cooksey, a resident merchant at Southtimony, that he was, at the time of execut- ampton, was his vice consul. The will was ing the will, of sound mind.

prepared by Walter R. Lomer, a resident

solicitor, and was executed at his office [No. 55.]

February 24, 1866. By this will he de

vised the property in controversy to the Argued November 8, 9, 1904. Decided De

appellees Mary Cecelia Thomson and cember 19, 1904.

Georgiana Hawkes Thomson, his cousins,

of Kent county, England, jointly for their N ERROR to the Court of Appeals of joint lives, and to the survivor of them,

the District of Columbia to review a with remainder to Mary Cunningham Robjudgment which affirmed a judgment of erts, of London, for life, and remainder in the Supreme Court of that District, en- fee to her only son. The will, which was tered upon a verdict for defendants in an executed in duplicate, was written upon action of ejectment. Affirmed.

two sheets of paper, to each of which the See same case below, 22 App. D. C. 9. testator affixed his name. It was wit

nessed in the usual form by Lomer and by Statement by Mr. Justice Brown: one Linthorne, a clerk in his office, who at

This was an action of ejectment brought tached their signatures in the presence of in the supreme court of the District by and at the request of the testator, and in grantees of the heirs at law of William the presence of each other. On the day Thomson against Joseph H. Moore and the after the execution of the will Thomson firm of Thomas J. Fisher & Company, again went to the office of his solicitor, agents of Mary Cecelia and Georgiana Lomer, who wrote a certificate of acknowl.. Hawkes Thomson, of the county of Kent, edgment in the margin of the second and England, devisees under the will of Wil- last page of the will, which was signed by liam Thomson, to recover possession of an Cooksey, the vice consul. undivided ninety-one one hundredths of The original will, being of record in the certain real estate in the city of Washing. Probate and Admiralty Division of the ton. Upon the trial it was admitted that High Court of Justice in London, could not William Thomson died in Southampton, be produced, but was proved by a certifiEngland, in 1887, seised of the lot in ques-cate and examined copy. The attestation tion; that he was born in, and was a citi. clause and the certificate were as follows: zen of, the United States, leaving no issue or descendants. Plaintiffs had acquired Signed and acknowledged by the said the title of the heirs at law, and the de-'William Thomson, the testator, as and for

IN

ence.

his last will and testament in the presence what it contains. It certifies, in substance, of us, both being present at the same time, that the testator attended before Cooksey who at his request in his presence, and in upon the day following the date of the the presence of each other have hereunto will, acknowledged it to be his last will subscribed our names as witnesses. and testament, and that the signature is Walter R. Lomer,

genuine. Whether he intended to certify Solicitor, Southampton, Eng. that Thomson acknowledged his signature R. Roupe Linthorne,

to be genuine, or that ne, Cooksey, certiHis Articled Clerk. fied that it was genuine, is somewhat un

certain; but if the words “Vice Consul of I hereby certify that William Thomson, the United States of America,” which are consulat Southampton for the United merely superfluous, were omitted, there States of America, attended before me this would be no failure to comply with the 25th day of February, 1886, and acknowl-statute, unless in the omission to certify edged the foregoing paper-writing con- that Cooksey, the certifying officer, "attained in two sheets of paper as his last tested and subscribed in the presence of will and testament and that the signature the said devisor.” But as it appears that “Wm. Thomson” at the foot thereof is in Thomson, not knowing when he would be the proper handwriting of the said Wil- in London, took the certificate to the vice liam Thomson.

consul, and that the latter signed it, the [Seal U. S. Consul.] John H. Cooksey,

jury might properly draw the conclusion Vice Consul United States of America. that it was signed in the testator's pres

This would be the usual course of The execution of the will was proved by business, and the presumption is that the two subscribing witnesses, Lomer and Cooksey conformed to it and to his duty Linthorne, and the certificate by proof of as a certifying officer. the death of Cooksey, and the genuineness

The certificate was probably prepared of his signature. This was proper. Clarke under the belief that wills, like deeds, v. Courtney, 5 Pet. 319, 8 L. ed. 140; Steb- made in a foreign country, must be executbins v. Duncan, 108 U. S. 32, 27 L. ed. 641, ed and acknowledged before some foreign 2 Sup. Ct. Rep. 3.13. At this time there

At this time there official, or “before any (some) secretary of was in force in this District the 5th legation or consular officer of the United section of the act of 29 Charles II., chap- States” (Rev. Stat. § 1750; U. S. Comp. ter 3, which had been adopted in Maryland | Stat. 1901, p. 1196; D. C. Comp. Stat. in 1798, and carried into this District as

chap. 58, § 6); but as such certificate was § 4, chapter 70, of the Compiled Statutes unofficial, and contributes nothing, as such, of 1894. It provided

to the validity of the will, it can only be

"All It provided as follows: devises and bequests of any lands or tene- looked upon as the affirmation of an ordiments, devisable by law, shall be in writ- nary witness to the facts therein stated. ing, and signed by the party so devising No particular form of attestation was necthe same, or by some other person in his

essary, as appears to be the case in Engpresence, and by his express directions, and if the certificate of Cooksey had been

land and in several of the United States; and shall be attested and subscribed in the written at the foot of the will and signed presence of the said devisor by three or by himself and by the two witnesses, four credible witnesses, or else they shall Lomer and Linthorne, it would have been be utterly void and of none effect."

a sufficient attestation. How, then, can it The object of the certificate in question be regarded as insufficient when an attestathat Thomson took the will away with him tion in one form is signed by two witnesses is not entirely clear, though from the fact and an attestation in another form by a after its execution, and stated that he third ? Bearing in mind that the certifiwould attend before the consul general at cate, if given any force at all, must be conLondon and obtain the requisite certifi- sidered an attestation, we do not think cate, it would seem that he thought the that the fact that it may have been writcertificate was necessary to the proof often and signed under a mistaken impresthe will in another country. He did not sion as to its necessity and purpose vitigo to London, however, but called again atates it as an attestation. What use was Mr. Lomer's office, with the request that intended to be made of it is immaterial, he prepare the requisite certificate, which if it were useless for any purpose as an he afterwards procured Mr. Cooksey to official certificate. The facts certified are sign. The certificate was not offered as appropriate to the attestation of the inproof that the will was a copy of the orig. strument, and, if true, we see no reason for inal, since it was annexed to the original, holding it to be invalid as an attestation and we can consider it only as proof as to because it was signed under the impression that it was necessary for some possible tors" and the other opposite the word purpose as a certificate.

Witness." There was no attestation clause The case of Adams v. Norris, 23 How to the will. The deceased intended one of 353, 16 L. ed. 539, is much in point. This the witnesses to be his executor, and asked was an action of ejectment for a parcel of him to sign his name in that character. land in California. Plaintiffs claimed Lord Penzance held that such person did through the heirs at law of one Grimes, not sign the will exclusively as executor, defendants through the devisees in his but that he also intended by his signature will. The law required three witnesses to to affirm that the deceased executed the the validity of the will. Two of the wit- will in his presence, and that consequently nesses signed in the usual manner, but the will was valid. Somewhat to the same above their signatures and beneath that of effect is Pollock v. Glassell, 2 Gratt. 439. the testator was written: "Before me, in the absence of the two alcaldes, Roberto T. witnesses must intend to attest the will as Ridley, Sindico." The sindico was count- witnesses, the inference is strong that ed among the witnesses, the court saying: Cooksey did so in this case, as he certifies “We comprise among the witnesses to the to the genuineness

the genuineness of the signature of will, Ridley, the sindico. It does not ap- Thomson and to the acknowledgment of pear that a sindico was charged with any the will in his presence; and these are function in the preparation or execution of what would have been required by the law testaments by the law or custom of Cali- of this District had the instrument been a fornia. Nor is it clear that the sindico in deed. It is argued that Cooksey did not the present instance expected to give any intend to attest the will, but merely to sanction to the instrument by his official sign the certificate; but the certificate of character. He attests the execution of the what? Only the fact that the will was will, and we cannot perceive why the de- acknowledged in his presence and that the scription of himself, which he affixes to his signature was genuine. This is precisely signature, should detract from the efficacy the object of an attestation, and as an atof that attestation." As it did not ap- testation we think it must be regarded. pear that the sindico or the two alcaldes He may have supposed his official certifiwere charged with any special duties, it cate of acknowledgment necessary to the was practically held that the certificate of execution of a will in a foreign country, acknowledgment, and the official character but as he did certify personally to such acof the sindico, might be disregarded, and knowledgment the addition of his official the signature treated as an attestation. title adds nothing to, and takes nothing

In the case of Clarke v. Turton, 11 Ves. from, the weight of his attestation. We Jr. 240, the will was executed abroad. It must conclude that he intended to certify appears

that three witnesses were re exactly what he did certify, and we are quired, apparently under the same act of giving it exactly the effect he intended to Charles II. as in this case. The third sig. give it. nature was, as in this case, that of the If the certificate were an official act and vice consul, whose attestation was consid- material as a separate acknowledgment of ered necessary to the validity of the act. the execution of the will, as in the acThe case is insufficiently reported, but the knowledgment of a deed, the case would be court held that the attestation was a mem- different, since it has never been supposed orandum of the vice consul, to operate as that a notary, who takes an acknowledg. a certificate, "a separate act in his public inent of a deed, could be counted as a witcharacter, and sealed with his official seal; ness to the deed without a separate and therefore it could not be said he sub- signature. But here the certificate was a scribed as a witness.” The question upon wholly unofficial act, and we see no objecthat point was sent to law, but it does not tion to disregarding the words "Vice Conappear what disposition was made of it. sul of the United States," and treating it It appears that the certificate was an offi- as an acknowledgment of the execution becial act, and treated as necessary, but the fore a competent witness. The acknowlreport fails to show what it contained, edgment of a will is really a feature of the and, in the absence of such showing, the attestation. The statute did not require case is of little value.

that the devisor should sign the will in the The applicability, and, to some extent, presence of the witness, but that the witthe authority, of this case, is somewhat ness should sign in the presence of the weakened by that of Griffiths v. Griffiths, testator. L. R. 2 Prob. & Div. 300. The will was 2. The evidence of Thomson's insanity signed by the testator in the presence of was quite unsatisfactory. It appears that two witnesses, who signed their names in during the autumn or early winter of 1885 his presence,-one opposite the word “Execu- 1 he was seized with an acute mania, and on December 15 was committed to a private ing the will, of sound mind. There was insane asylum as a lunatic, upon the cer- no error in this instruction. tificate of two physicians, and at the re- There were also a large number of ex. quest of a cousin, named James

James E. ceptions taken to the admission or excluCunningham, a merchant of London, who sion of testimony and to the charge of the appears to have taken temporary manage-court, but to consider them in detail would ment of his affairs. He remained in the subserve no useful purpose. We have ex. asylum about six weeks, and on February amined them carefully, and have come to 1, 1886, somewhat more than three weeks the conclusion that there was no ruling of before he executed his will, was discharged the court of which the plaintiffs were enas probably cured,-in reality granted a titled to complain. The evidence of inleave of absence on probation. The belief sanity was very slight, and there was no in his cure being justified by his subse- legal testimony to show that the will was quent conduct, a formal order of discharge executed under the pressure of an undue was entered on the record of the asylum on influence. June 26, 1886. Lomer and Linthorne, the The judgment of the Court of Appeals is, witnesses who were present at the execu- therefore, affirmed. tion of the will, and Septimus Cooksey, the son of the vice consul, all testified to the mental capacity of the testator at that

(196 U. S. 68) time.

WILLIAM B. WETMORE, Plff. in Err., In this connection exception was taken

V. to the exclusion of the application of ANNETTE B. MARKOE (formerly AnJames E. Cunningham for the admission

nette B. Wetmore). of Thomson to the insane asylum, and of the certificate of the two physicians as to Bankruptcy effect of discharge upon alihis insanity. These were properly ex

mo

and allowance to minor children. cluded, not only because they were unsworn testimony, but because they were A discharge in bankruptcy does not bar the given in a different proceeding and upon a collection of arrears in alimony and allowdifferent issue. Thomson may have been

ance for the support of minor children, due

under a decree in an action for divorce, since insane to the extent of being dangerous if

such liability, although fixed by a decree set at liberty, and yet may have had suffi- which is beyond the power of the court to cient mental capacity to make a will, to alter or amend, because it did not reserve enter into contracts, transact business, and any right of subsequent modification or be a witness. In the case of Leggate v.

amendment, is not a "debt" within the mean.

ing of the bankruptcy act of July 1, 1898 Clark, 111 Mass. 308, the admission of sim

(30 Stat. at L. 562, chap. 541, U. S. Comp. ilar testimony was treated as error. In Stat. 1901, p. 3447), $ 63, providing for the addition to this, however, these certificates proving of debts which are a fixed liability were both dated December 14, 1885, more

as evidenced by a judgment. than two months before the will was made,

[No. 56.] and are by no means inconsistent with the other testimony that he was released from the asylum as cured February 1, 1886, and Argued November 9, 10, 1904. Decided

December 19, 1904.
that three weeks after that, when he exe-
cuted the will, he appeared to be of sound
and disposing mind and memory.

IN
IN ERROR to the Supreme Court of the

State of New York to review a judg. In addition to the proof of his commitment to the asylum, and of his undoubted ment of the Appellate Division, First De

partment of that court, which affirmed an insanity prior and for some time subse-order entered at a Special Term held in quent thereto, there was slight evidence of and for the County of New York, denying insane acts during the month of February, an application for an order restraining the though there was no opinion expressed by collection of arrears of alimony and alanyone that he was incapable of making a lowance for the support of minor children, valid deed or contract. The whole testi- such application being based on the theory mony regarding his insanity was duly sub-that the liability therefor was discharged mitted to the jury, who were instructed by proceedings in bankruptcy. Affirmed. that if they found his insanity to be permanent in its nature and character, the Statement by Mr. Justice Day: presumptions were that it would continue, On June 12, 1890, an action for divorce and the burden was upon the defendant to and alimony was begun by Annette B. W. satisfy the jury by a preponderance of tes-Wetmore, wife of the plaintiff in error, in timony that he was, at the time of execut. 'the supreme court of the state of New

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