The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-12-28
THE MASON WILL CASE.
supre me Court-General Term.
Decision Of Judge Morris.

adde the verdict Of the jury and for new trial.
OPINION.
Among the questions submitted to the jury for
their answer were the folowing:-
l. Is the paper writing, purporting to be the last
viii and testament Of John Mason, deceased, dated
the 26th Of September 1889, the last will and testa
ment OF John Mason, deceased?
2. Was the said John Mason, at the time Of the
making and subscribing or acknowledging by him
such paper writing, of sound mind and memory, and
in all respects capable OF making wilI
These questions the jury answered in the negative.
This application is made upon two grounds
i: Aisdirection Of the justice who presidea az the
trial.
2. The verdict is against the weight Of evidence:
misdirecton of the Judge if, from the evidence In
the cause this court the result would have been
the same whether the Objectionable directions had
been given or not; OF wnere tne evidence IN tne
Depuyster vs.. Columbia Insurance Company; 5th
Wendell, EST, Dean We. Harriet; 10th Johnson R.,
447, Dole We. Lyon; 18th Wendell, $780, Parkson vs..
The facts in this case as established by the evil
deDce are the f0llowiDg:-In 1886, Mr.. John Mason,
upon the death of one of his SONS. cancelled will
which he bad previously made, and which had been
drawn by, and deposited with Chancellor McCoul.
At the time he cancelled that will, Mr.. Mason told
Chancellor McCoun he would at some future day call
and get him to draw another will for him. Suisse
quensly to this, upon various occasions and before
the spring Of 1889, in casual conversations with
Chancellor McCoun Mr.. Mason alluded to the sub
ject of having Chancellor McCoun draw up will for
him; to which Mr.. McCoun always in substance re-
Blied-"W Whenever you desire it to be done call at
my office, where you will find me of evenings, and
Will attend to it for you" During this same period
Mr.. Mason had several conversations with friend
and relative of his, Mr.. John Q. Jones, in which
the litigation upon the Lorrilard win, its result,
and the difficulty Of making will that would stand
legal tests, were the topics of conversation.
Ia some Of these conversations, Mr.. Jones
stated that "the Revised Statutes made good
bis will according TO the provisions Of the Revised
Statutes, as near as it could be made
Mr.. Mason observed HE thought a person
might, in preamble 70 his will, give his opinion Of
his property among them as he pleased" During the
came period, Mr. Mason freely expressed his convic-
ton Of bis sons want Of business capacity, and Of
their propensity to spend money; and as freely pro-
claimed the high estimation in which he held his
daughters and the estimation in which ne held his
different sons in law. All this occurred before the
spring of 1882 After the spring Of 1885, and before
the afternoon OF evening Of september U.s. 1885, the
evening before his death, there is no evidence 0fany
act or declaration of MIR. Mason, showing he either
contemplated or desired to make will; but on the
contrary there strong negative evidence showing
ne had determined TO die without making will. In
the summer OF 1885, the symptoms Of the disease of
which Mr.. Mason died exhibited themselves in him,
though they we're not then 80 recognized On the
10th or 18th OF September, 1889, Mr. Mason took to
his room and be and remained there until his death
which occurred on the 26th of the same month. On
the occasion Of Mr.. Mason taking to his room aud
bed, Dr. Berger for many years his family physician,
was sent for. He called, and from examination dis
covered and SO informed Mr.. Mason that hislecease
was that of the heart. To this information Mr. Mason
promptly replied"I then know, Doctor that neither
you nor any one else can help me;' and immediately
stated IL regret that have not made WILL" The
subsequent evidence in the case shows that this
"regret' that he hsd not made will" was not an
expression either Of desire the determ nation to
make win II he could; but vas rather an exclama-
ton of controlling spirit shocked by the sudden
conviction that his days were numbered, expressing
doubt whether he had done right in having deter
mined not TO make will, and is conclusive proof
that he fully appreciated his situation and that If he
desired to make will he knew he must make it
Immediately. DR.. Berger, ct the same time informed
Mrs. Jones, who was present. the sister sisterin-
law OF Mr.. Mason, and the family, that Mr.. Mason
might die at any moment. Dr.. Berger sat up with
and symptoms were such that he then sup-
posed he might pass off at any moment.
From this night down to his death he suffered
severely from the pain Of his disease in paroxysms
Of hours duration, which sometimes continued for
the entire night and these attacks became fire.
quent and of longer duration, and progressively
weakened him. M. Mason, from the first night DR..
Berger visited him, was perfectly aware Of his situa
ton, and that he mighs expire at any moment From
the 10th or 18th VI September to and insluding the
I'D OF the same month, some friends not OF his i'm.
mediate family, visited him. and their evidence es-
fabllshes that down to and including the 22d of Sep
TENDER, MIR. Mas0ns conversation and acts exhibited
his accustomed strong practical judgment. Among
these visiters were Ch.acelor McCoun AID Nh. Johs
q. Jones-the same Mr.. Jones with whom Mr.. Mason,
prior TO the spring Of 1882 had conversed upon the
subject Of will; and to Chancellor McOoun, before
that spring, he bad said he would, when he wished
will drawn, call upon him to draw it. With both
these gentlemen he conversed upon business. The
business Chancellor McCoun had with him was in
relation to declaration Of trust in favor Of one Of
Mr.. Hason's sons, OF q farm on Long Island which
Mr. Mason had paid for and the title had been taken
N Chancellor McCoun's name. Mr. Mason directed
alterations to be made in the declaration of trust
Here was Mr.. Mason, in the full possession
of bis intellect, conscious that he might die at any
moment, ard thst he must die in few hours at the
LIE, converting with the Of all others in whom
he would c0nfde the drawing of his will, and yet he
did not allude to the subject Of will. Would he
have thus acted unless at that time, from ma
out will l think he would not. At this time, as
late as the 22d, Mr.. Mason could lay upon his back
with his head raised only with his pillow. And there
had been no wandering Of his mind; be had not talk
objects as being present which were not there; he
had in all respects, under every circumstance down
to aud including this ed of September, shown the
full possession of his usual strong practical intellect
After the 22d the evidence shows his condition, ply
sical and mental, was much impaired. After the
I'D Mr.. Mason was seen by person except his two
daughters, Mrs. Isaac and Cotord Jones; his two
sons.in-law, Isaac and George Jenes; DR.. Berger,
As0hcrC0CA,
The evidence shows that after the 22d he was 80 Ill
that they refused his sister, Mrs. mes, and his
friend and former partner, Mr.. Hasburgh &C
cess TO him and that after the ed, and
before the afternoon of the 25th of September
they were obliged to raise Mr.. Mason to q
setting position upon his bed, with pillows and o
chair behind him, and with rope board In front
Of him to prevent his leaning over forward. He
wandered in his mind; would hold his hands to his
head Is If thinking intently, and would talk ncohe
rently After the I'D and before the 10Th, Mr. II. w
Field saw Mr.. John Q. Jones At the Chemi
cal Bank. Mr.. John q. Jones informed Mr.,
Field Of Mr. Mason's situation, and also
that Mr.. Mason had not made will. Mr.. Field sug-
ges ed to Mr.. John g. Jones that Mr.. Mason ought 70
make will, If only appointing executors, to save the
necessity of getting security for administrators This
suggestion Mr. John Q. Jones repeated IN Mr. Isaac
Jones, who then got from Mr.. Strong the
draft Of a will only appointing executors for
Mr.. Mason to sign When Mr.. Isaac Jones applied
to Mr.. Strong TO make bis draft will, he told Mr..
Strong that Mr. Mason was very ill that they had
discovered Mr. Mason had no will by him that he