those who strive for the classics of judicial utterances. The newly instituted plan of electing judges retired Judge Napton from the bench in 1851. At that day political nominations were not made for this office, and no lawyer was a seeker for its honors. Returning to the active practice, Judge Napton soon enjoyed a high rank at the bar. The year 1857 found him elevated to the bench a second time, without solicitation or a nomi nation. The failure to take the Oath of Loyalty prescribed in 1861 vacated his office, and from 1863 to 1873 he was a leading member of the St. Louis Bar, with a large practice in cases from every part of the State before the Supreme Court. The sudden death of the lamented Judge Ewing in 1873 left a vacancy in the membership of that court. Three days afterward Governor Woodson en closed a commission to Judge Napton asking him to fill the vacant seat, very felicitously saying that he did so without solicitation, and in anticipation of what he knew was a reflection of the unanimous sentiment of the bar of the State in the premises. The ur gency of friends and his natural predilection for the bench moved Judge Napton to incur the pecuniary sacrifice which the acceptance of the commission involved. Re-elected in 1874, he remained on the bench until Dec. 31, 1880. At his farm and family residence, " Elk Hill," in Saline County, he died, Jan. 8, 1883. I first met Judge Nap ton in 1876, and for the four following years saw him almost daily during the nine months of the year for which the court was in session, and occupied an office immediately below his chambers. Gentle and retiring in the mod esty of his nature, his heart and soul were those of a perfect man and an incorruptible jurist. He had a keen appreciation of the kindly forbearance due to young men; and many a client owes the success of his cause to the fact that Judge Napton brought a learning and an ability to bear upon the de cision of his case which his counsel can never hope to emulate or to attain. The writer will never forget that in the first case a con
fiding defendant was pleased to intrust to him he was ingloriously routed in the trial court. The instructions so carefully pre pared and so prayerfully offered were sum marily marked " Refused." The Supreme Court was appealed to. The case involved the interesting question of the proper defi nition of testamentary capacity. Judge Nap ton reversed the rulings below, rehabilitated the rejected instructions, and established the modern and intelligent test upon the subject, — had the testator sufficient capacity to understand the nature and quality of the act in which he was about to engage, and to appreciate the claims of those who might properly be made the objects of his bounty'? — and rejected the narrow view of making his capacity turn upon his ability to transact the ordinary business affairs of life. (Brinkmann v. Rueggesick, 71 Mo. 553.) A few days after Judge Napton's death, the St. Louis Bar adopted a touching memorial embodying and preserving a record of his life, his splendid achievements, and his unsurpassable virtues, which stands spread upon the records of the court and prefaced to Vol. 76 of the Mis souri Reports, followed by a similar memo rial adopted by the bar of the circuit in which Judge Napton lived and practiced for many years, and within the limits of which he passed from the land of mortal life. A few months after his death the Legislature paid a deserved tribute to his memory by directing the purchase of an oil portrait of the deceased jurist from the brush of Frank W. Pebbles. It is a faithful reproduction of his features, and is suspended immediately over the bench. It is a matter of regret that this custom has not been more gener ally followed, for the portrait of Judge Nap ton is the only one upon the walls of the Supreme Court Room. The Legislature has been more disposed to adorn the walls of its own halls by the purchase of l eroes in the world political and military. Judge Napton was small in stature and erect in bearing. His chirography was diminutive and exceed ingly regular. He habitually used unruled
