NORTH SHORE BREEZB 
Register of Probate Atherton Gives Interesting 
“Probate Law” under ordinary con- 
ditions offers a rather dry subject 
for a talk before a gathering of men, 
yet the manner in which Horace H. 
Atherton, Jr., register of probate of 
Essex County handled the subject in 
a rambling sort of talk before the 
members of the Manchester club last 
Friday evening, places such a subject 
in.a‘more interesting light. Mr. Ath- 
erton intermingled wit with the sub- 
ject in such a way that his hearers 
were instructed as well as entertained. 
Mr. Atherton quoted the late 
dge Choate, for many years at the 
head of the Essex county probate 
court, as saying that it sesined to be 
an instinct of man that property 
shuuld -lescend from parents to chil- 
dren, a principle recognized by all civi- 
lized uations. The forms of law and 
of procedure, Register Atherton sta- 
ted, by which this descent is regulated 
are diverse in different states, but 
they all agree in giving to the wifs and 
children, or other kindred, the goods, 
chattels and estate of a deceased per- 
son. 
Register Atherton said there were 
two methods of distributing in the 
case of a person after death. One is 
the distribution according to the last 
will and testament of the deceased. 
Another is a distribution according to 
the Jaw in such cases made and pro- 
vided, there being no legal record of 
the last will or intention of the owner 
upon that matter. 
“Tf.our property is to be distributed 
by will, we come then to the more 
practical question of who can make a 
will? The statute says every person 
of full age and sound mind. The full 
age is 21. A child under 21 cannot 
dispose-of one dollar’s worth of prop- 
erty, real or personal, by will. He 
or she may have an enormous fortune, 
but it cannot be given away by will at 
death and it must pass according to 
the laws of descent. 
“Let us assume for a moment that 
our will has been legally drawn and 
properly executed. It is highly im- 
portant that it be legally drawn and I 
cannot at this moment think of a more 
unfortunate thing than an imperfect, 
home -made-will, whose:name:is legion. 
A will legally drawn, properly execut- 
ed. must then be proven by the Pro- 
bate Court, or it has no standing, 
and:no property, real or personal, can 
pass by it unless it is set up by our 
court. 
“Consequently, as it speaks at our 
death, its voice should be distinct and 
Talk on Probate Law. 
its mission thoroughly understood. 
“Tess mental capacity is required to 
make a will than to make a contract. 
The test in the law of wills may be 
said, in a general way, to be whether 
the testator understands what he pos- 
sesses, whether he has the mental cap- 
acity to know who his heirs are and 
what his relationship to them is. If 
he knows what property he owns, un- 
derstands what the ownership of prop- 
erty is, if he knows who his heirs are 
and if he has the capacity to have a 
reason for desiring to give property to 
some one, to be grateful for favors 
received, then he is not insane and in- 
capable of making a valid will, al- 
though he may not come up to the 
mental standard of one competent to 
make a contract.” 
Mr. Atherton said that wills must 
be in writing, not oral. ‘To this, how- 
ever, he said there was one exception. 
Wills of soldiers in actual military 
service and of marines at sea may 
be oral, that is, nuncupative. They 
only dispose of personal estate, how- 
ever, as one cannot dispose of real 
property by such a will. It gives no 
rights to the hero at Boxford in camp 
on the summer muster field. It must 
be a soldier in actual military service, 
or a mariner at sea, not a yachtsman 
on the bounding billows off Manches- 
ter or in some other pleasure trove 
along our stern and rock bound coast. 
“We have jurisdiction not only of 
wills of granting administrations upon 
estates where no will is left, of the 
appointment of guardians of minors, 
insane people, and spendthrifts, of pe- 
titions for the adoption of children and 
for the changes of names; separate 
support cases, and of such other mat- 
ters as have been, or may, placed with- 
in our jurisdiction by law and these 
and similar cases are of such vital 
moment to our social fabric, that the 
mere recital of them gives a keen reali- 
zation of the never ending importance 
of the duties and functions of the 
Probate Cuurt. 
“An anonymous writer has well said 
that few men in the community have 
as many things of importance entru st- 
ed to them as the lawyers, and he 
might have added that few lawyers 
have more important functions en- 
trusted to them than those which are 
necessarily exercised within the con- 
fines of the Probate Court. When we 
try to fully understand this claim, we 
must remember that no true concep- 
tion of the lawyer’s influence can be 
found by considering only trial law- 
15 
yers. ‘There are many famous and in- 
fluential lawyers who never appear in 
the courts in the usually understood 
capacity of a trial lawyer. They are 
what are called office lawyers and 
there are none more important. 
“The lawyer has to deal with the re- 
lationship of men. He is continually 
trying to answer such questions as: 
What disposition should be made of 
the property? What is the meaning 
of a will? What is legally right for 
the weak? Who should be put under 
guardianship? Should a man and his 
wife be separated and, if so, and there 
are children of young and tender years, 
to whom should their custody be 
given? And thus, perhaps, at one fell 
swoop, determine or alter their entire 
future careers. 
“lhe noble lawyer, of character high, 
principles true, and with a conscience 
sensitive to the calls of the Divine, 
moves continually upon the fundamen- 
tal law of nature, ‘that a man should 
live on, hurt no one and render every 
tran his due,’ and he is truly a lawyer 
of power and,a man to be honored, 
who would rather know the joy of a 
clear conscience than to deprive any 
one, living or dead, of that which, 
by the law, belongs to him or his heirs. 
‘rue character is not revealed by 
tricks and that shrewdness which takes 
advantage of weakness, particularly 
‘n widows, minors, children, insane 
people and others, and such conduct is 
sure to unsettle the foundations of 
true nobility.” 
Mr. Atherton closed his very 
interesting and instructive address by 
inviting his hearers to visit him at 
the Probate Office in Salem, where he 
said he would be glad to personally 
show them the court in operation. 
At the clase of the tatx Ms. Ather- 
ton was given a rising vote of thanks. 
Following the talk refreshments were 
served by the entertainment com- 
mittee. 
VENERABLE EGG 
Speaking of cold storage eggs, a 
correspondent sends in a story that 
may be new to some readers; at any 
rate it sounds plausible. A middle- 
aged bachelor was in a restaurant at 
breakfast, when he noticed this in- 
scription on the egg: 
“To whom it may concern: Should 
this meet the eye of some young man 
who desires to marry a farmer’s 
daughter, 18 years of age, kindly com- 
municate with Sparty, N. J.” 
After reading this he made haste to 
write to the girl offering marriage, 
and in a few days received this note: 
“Too late. I am married now and 
have four children.”—Newark Star, 
