no consequence whether the person who put them out had power to punish; it was lawful to stop the misbehavior.*—There was a Miss Slocum, whose mother died, and her father married again. Then she herself married, and lived with her husband till he died; after which she returned and boarded with her father. She did not agree with her stepmother, and one day became very abusive. Her father stopped her by force, and put her out of the room; and she complained of assault, because, she being a grown woman, her father had no right to punish her. The court said that had nothing to do with the case; he had the right to stop any person, young or grown, child or stranger, from aspersing and vilifying his wife in his house.† But after the misconduct is over, and the pupil is to be punished for it as a past act, the general rule is that the teacher must act without anger or malice, and must exercise a reasonable judgment, such as a jury shall approve, in proportioning the punishment to the nature of the offence and the susceptibility or endurance of the pupil. Beyond this the decisions are in confusion, showing how impossible it is to agree on any precise rule. Some forty years ago, in North Carolina, a teacher was complained of for switching a little girl of seven so severely as to raise marks on the flesh, which, however, disappeared in a few days. The court held that raising temporary marks was not abuse; the question was whether the punishment was calculated to produce permanent injury. A teacher had not authority to do permanent injury; but, within that, the manner of punishing was in his discretion. And precisely such a case, in the same State, in 1873, was decided in the same way.-But in the Iowa case already mentioned, the young lady testified she was struck a dozen blows with a hickory rod four feet long and about half * Peck v. Smith, 41 Conn. 442; Stevens v. Fassett, 27 Me. 266. an inch in largest diameter, which produced marks and welts that lasted two months. The court held this was an excessive punishment as matter of law. Any punishment which leaves marks on the person of the pupil for two months, or even less, is immoderate.-In a Texas case the complaint was that some unusual and cruel implement was used by a guardian in punishing his ward; and the court said that what instrument was used was not the question; the degree of punishment was the matter to be considered.*-On the other hand, in Georgia a man was proved to have punished his daughter, ten years old, by slapping her with a hand-saw flatwise; and the court said it was an implement no one but a brute would use; a cruel thing to inflict punishment; unless some extraordinary circumstances were proved to justify using it, even to strike the child “ one lick " with it was unlawful. Thus each case must be decided by its own circumstances. But the authority of teachers is limited, and the rights of children are protected by this general rule, that the punishment must not be more severe than a dozen average fathers of families will say was right. *Stanfield v. State, 43 Tex. 167. † Neal v. State, 54 Ga. 281. CHAPTER XXXVI. DRAWING ONE'S OWN WILL. MANY a testator has involved his estate in litigation and expenses, or even frustrated his cherished designs completely, by assuming to draw up his own will. Considering for how long a time wills have been used, how frequent and general are the occasions for them, it seems strange that so many are dubious, insufficient, or unintelligible. Wills are not rare, so that infrequency of use prevents growth of general knowledge. There is scarcely a man or woman who may not be called upon to make a will not a few persons make and revoke more than one. They are not a new invention about which the public have not had time to learn, but are coeval with our jurisprudence. Wills of personal property were allowed as early as Saxon times in England. Notices of some twenty-five Anglo-Saxon wills are still extant, among them that of King Canute and that of King Alfred. The right to devise lands was established in the reign of Henry VIII. As long ago as the reign of Charles II. in England, the formal requirements of law for the execution of these wills were prescribed substantially as they now exist in all our States. Nor is the law abstruse and difficult of observance. The requirements as to execution are simple, and may easily be obeyed; and the rules of the courts for determining the intention of a testator and carrying it into effect are liberal, and as free as possible from stringent technicalities. And yet every week exhibits a new case of a testament disputed because not executed as the law requires, or brought into the courts for adjudication because heirs and legatees cannot unite in understanding what the testator intended. Every year the law reports present many instances of long litigations, eating up an estate by law expenses, arising from blunders or want of foresight and clearness of expression in making a will. Such controversies as the Stewart and Vanderbilt cases, indeed, arise upon grounds against which the best judgment of a testator can hardly be expected to provide, and are fomented by the mere magnitude of the estate involved to a heat and conflict quite disproportionate to any difficulty in legal questions presented. No one can prohibit in advance that his estate shall be claimed by unknown relatives, and the sanest and most self-willed of testators cannot prevent his heirs from contesting his will on the ground of insanity and undue influence. But, aside from these, there is a large class of cases in which long and costly lawsuits might be avoided by reasonable care and attention in the making of the will, and especially by employing competent skilled assistance. Take the single question of formal execution, and the jurisprudence of this country in the past five or six years will disclose a score of cases in which extended and expensive litigation has been caused by careless blundering. Undoubtedly, very simple and inartistic methods will be sustained if the intent is clear, particularly in States where the statute requirements as to form are less rigorous than in New York. In a California case the following paper has lately been sustained: "Dear Old Nance, -I wish to give you my watch, two shawls, and also $5000. Your old friend, E. A. Gordon." But a lawsuit was needed to establish it, and probably one or two thousands of the five were exhausted in the process. How is it that so many persons who are thoughtful enough to make a will take so little thought as to how it shall be made?* One Ehrenberg, of New Orleans, dated a sheet of paper at its top and wrote below, "Mrs. Sophie Loper is my heiress," and * Clarke v. Ransom, 50 Cal. 595. he signed his name. Some months later he wrote underneath, "The legatee's name is correctly spelled Loeper." Now the law of Louisiana allows a will which appears in the testator's own handwriting to be valid without any witnesses. Hence the Supreme Court sustained this paper as a valid will. But did Mrs. Loper receive the estate? She obtained what was left of it after paying for a ten years' lawsuit.* In a New York case, a John Kelly, some years ago dead, bought, while yet alive and hearty, a printed form of will at a lawstationer's, filled up the blanks with legacies as suited him, and then essayed the proper closing clauses. He wrote: “Likewise, I appoint E. McCarthy to be executor," and here he signed his name. As this seemed not quite the proper thing, he blundered along with further words to complete the will" Of this my last will," etc.-several lines more, closing without signature. Afterwards he obtained witnesses to sign, and underneath their signatures he wrote, "Subscribed by John Kelly." The result was his name did not appear at all where it should have been placed, at the very end of the will, but popped up insanely in the middle of the clause appointing the executor, and again after the witnesses' names. The will was declared void, and the legatecs lost their legacies.t Henry Catlett, in Missouri, was even less fortunate. He sent a message to a lawyer to draft a will for him, which the lawyer did, putting the name in the heading in the usual form. Catlett read the paper, expressed himself satisfied with it, and asked witnesses to sign it. They did so, but he himself did not. The somewhat desirable ceremony of the testator's signing was omitted altogether. Notwithstanding this neglect, the Probate Court accepted the paper for a will, thinking the name in the heading or title was enough of a signature. But the heirs-at-law carried *Succession of Ehrenberg, 21 La. Ann. 280. |