The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-01-14

Ia" 70 pass ana repass the door OF Mr. Mason's room
aving prescribed for his patient and coming down.
he attendant suggested that he should step in and
Mr. Mason As next door neighbor and acquaintance
ne did So Mr. Colford Jones out Of the room he
entered The nurse, however, remained. The wit
sea 'hsn says in found b Mr.
saiutation Of good morning. how do you
DOR He knew me- and replied how do you do doctors'
horses in the yard asked the woman what Mr. Mason
meant she said he thong ht all the morning that the
man had horses in the yard asked her if it So
the same time advancing to the window looking into
the yard myself the w9man smiled, and said he did not
know what he saying that he often wandered in that
Dr. Van Rensselaer, and left the ROOM there WI re no
horses there IT was very evident he adds 'that Mr..
pear to DC capable OF carrying conversation; left
the room in minute or two; he a very ill man.
This you will recoect, the condition of the pa
tent on unccntradcted testimony, between about "a
and ~ O'Clock; and that the instrument which he was
called upon to examine and sign his will and which is
now before you produced for the time and sub
mitted to him on his sick bed, "a little somewhat
las MI Strong testifes) after eleven o'clock 1t might
have been though not likely as late as half past H.
at the of the Messrs Jones had had previous
consultation with Mr.. Mason, now appeared with the
and he says his impression decidedly is that Mr. NJ
quesed him to read it, At all events standing by the
bedside, he proceeded immediately to do SO. The
case it seems admitted of delay indeed the urgency
understood to be great that Mr. Strong, after
the Mcssrs Jones' up the stairs to the door Of the sick
room.
No consultation preceded or accompanied the reading
The instrument you will recoect OF considerable
length with several rather special provisions drawn the
night before in great haste and consequence from
errors in engrosng in particulars very obscurely
expressed 1t undoubtedly however read over to the
testator lie was not called upon to sign it without
1t read to him that he might understand its prov
sions and give to them If approved rational assent
suggest such objections qualifications might arise in
bis mnd-or it will be remembered previous draft or
outline had been submitted to him.
But how the instrument read-read to a man labor
my at the time under severe paroxysm of four five
hours previous duration, and then in dying state?
II endeavored to- says Mr. Strong, ''and believe did
read the WILL audbly correctly, and distinctly but at
the same time having noticed that Mr. Mason appeared
70 labor very much in breathing and understanding that
he was near his end, read it with much rapidty
deemed compatible with sense Of my duty read the
ed Mason in to the whole and not to any
particular part of it, whether he understood it to
which he answered that he did then asked
him # it was correct; he said it was, and in
swer to one Of these questions-I am not which,
but think it was the rst-he said perfectly And upon
this 1t was executed and attested immediately in the
presence of Dr. Berger Mr. Isaac Jones' Mr. George JONES'
and the witness Mr. Strong the first and the last named
persons signing attesting witnesses Mr. Strong then
handed the will he to Mr. George Jones and left the
room and never saw Mr.. Mason afterwards.
1t is proper here to observe gentlemen, that Dr. Ber
in his examination in reference the execution of
The instrument by Mr. Mason, says-It was read to him
distinctly, SO that he could understand it."
erva OF about eighteen months, and asked whether Mr.
Strong read it, section by section directly through
without pausing" he answered. have forgotten whe-
much attention.
No pauses it is clear were made and the reading it.
sell It equally clear not only continuous but rapid
and it is for you to say gentlemen whether Mr. Mason
dying he was did or, in the nature of things could
understand such an instrument read and that not by
cut to him. unless he had previously considered
consulted in relation to- its provisions.
whether he was so consulted, and whether he had
considered shall examine hereafter.
The two mainly contested issues in this are 1st
Was the alleged testato in just sense of the term APP
phcabe to all the circumstances Of sound mind and
n hnnn thatr stnfa
willard adequate make the dispositions ascrbed to him,
at the time Of signing the paper offered for probaes I'd
Was his signature obtained by the exercise OF undue in
uence the mind OF the tetaor it the result
Of fair, intelligent suggestion from himself adoption
IRON Others OF the provisions contained in the instru
nentY Mere weakness of mind, whether natural the
result OF sickness, does not of ITSELF incapacate party
from making every will does the immeiia ancpa
ton OF DEATH even followed in very short time by
actual dissolution create of itself such disability. But
an instrument purportng to be will if signed by per-
in etrens challenges much closer scrutiny than if
made deliberately and while in full health especially if the
patient had already been suffering for several days under
borous breathing accompanied by frequent and painful
naroxym Of five six hours continuance which in less
than fifty minutes terminated his life.
In such case the jury iner-if the evidence will
warrant ia Of consent to the particular act from
inability to comprehend the nature and effect of its pro-
Visions from their number, completely and obcurity;
from the dispositions Of the property being contrary if
such be the case, to what might naturally have
been expected considering the relative situation
of the parties and the preudices partiaes and former
testamenary declarations Of the testator from the alb
Of his customary legal adviser if any such there
had BEEN the want Of previous consultation on the
subject and the nonexstence Of any testamentary in
structions directly emanating from the party himself,
and especially il he had full and timely notice of the
probable termination OF the disease and full opport unity
Tor holding such consultation and giving such instruc
tons If SO disposed.
On question Of Parliamentary capacity, facts
important than opinions although the latter whetherof
physicians or other persons are proper evidence, aud
entitled to due weight
Where person who procures will to be drawn and
executed IN etremis takes benefit under it, which,
without he would not have taken and there circum
stances Of suspicion greater less arising from the sit
uaon Of the esator the extent of the gift to such per-
the claims OF others upon the deceden and the like
proof of instructions may very properly be required and
ts absence insisted strong ground OF objection to
the validity of the instrument.
The law, in such cases. lays much stress the origin
Of the instrument and its previous history How then,
gentemen-or that is the next subject Of inquiry-was
the document before you brought into being? Mrs. Re-
becca Jones' it sad received verbal from Mr.
Mason which she communicated to Mr. Isaac Jones and
Mr. George Jones, and which they communicated to their
counsel Mr. Strong who took them down in writing and
immediately in the night previous to Mr. Masons death,
N great haste prepared from them draft will, which,
the next morning as early seven O'Clock before en-
gossment he submitted. to Mr. Mason, but to the
Messrs Jones, who, they had heard it read
in great haste again, Mr. Strong testifes went in
quest Of the scrvener so set him about making the
gr0ssment."
There is evidence whatever, unless it be the
sworn second hand rather third hand statement be-
fore referred to- that Mr. Mason himself had anything to
do with these instructions.
Neither Mrs Jones' nor her brothers in law who alone
could lit the vel OF obscurty IN which this part OF the
is involved has testified before you The only light
and it is but gimmering one proceeds from the Incl
dental remark made by Mr. Mason to his physician that
he expecting will, and wished him to stay
TO witness it's execution, something of like import
And even this is very much diluted by the subsequent
statement that he never told me that he had given d
rections 10 have his will drawn
Not only is there want Of evidence to support these
alleged Instructions but there some and perhaps you
may consider it strong, evidence the other way.
Mr. Mason it appears at intervals made and destroyed
TWO wills at least before the date of the paper in
controversy The first made time before the year
1885, was drawn by the late Mr. Boyd the second
made in that year, drawn by Vice Chancellor
McCOun AS to the contents of the first have
knowledge to those Of the second the evidence is
ample In 1t Mrs. Aston who had then just been married
to her present husband in every respect well pro-
vded for her sisters the Mines Jones' and the in
stead Of being made annuiant dependent in degree
upon the discretion of their sisters husbands made
executors themselves to the exclusion of those husbands
The division of the estate also point of shares