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

disputed win itse that he intended to make their shares
have married husband not over burthened with this
worlds goods this worlds PRUDENCE but surely that
good for be no re- Son
instrumenD the portion Of favorite child
From whom then, did the instructions dictated to the
lawyer the night the 25th of September emanate?
To my understanding, gentlemen-vewing the whole EVIL
dence taking all the circumstances into considera
of John Mason he wrote them spoke them, nor
think, conceived them. On this point howeverAas
the evidence, be imputed to anybody-none, l am
fully persuaded, was intended by anybody. There
princey estate from the hands Of those who in case
they obtained their full shares, might, it was appre
hended spend them too freely apply them unwisey.
All this it will be proceeds upon the assumption
that the win and the instructions substantially alike
do not read them. The Messrs. Jones, l under
stand the instructonswhich it should be remembered
for the first time produced in evidence this trial
Ghey were not before the Surrogate )-conemplated
After enumeratng rather after numbering from
to eghtthe several branches Of the famiy-they speak
put in trust and other mode Of partition is spec
fed or indicated equality is not only the legal but the
natural and necessary presumption in interpreting the
paper The whole income however, of each share was
not to be applied absolutely and Immediately to the
OF the beneGcares; but the whole income of the por-
ton, except in Mr.. Aston's case, might be applied
in the discretion Of the trustees Two thousand per an
mum in three Thousand in another and twenty
HVe hundred eacn IN the Two remaining be
applied out OF the incomes of the respective portions
absolutely but what to be done with the excess
1.-THE discretionary power of increase should not
ercsed Is left to inference And the absence Of ex
direction it certainly cannot supposed that
the intention Of the parties that the OF
the power should be benefit to the trustees other
words that in order proper the discretion
standing bounty should be created in favor of its pos
What then under the terms these called nstruc-
TONS was to become of the surplus contingent income of
the respective shares over the respective absolute
and h do nf
tive benefcaries was to become OF the capital of their
respective portionsY
the law, which favors equality would probably infer that
the surplus income where in consequence of the parties
being adults it could not be accumulated should be paid
Immediately, and that the capital their deaths
should to the respective heirs whoever they might be-
them to have had the sanction Of Mr. Mason, the will
subsequently drawn owing to the great haste in which
it was prepared and the utter mpossblty, for of
time or from the intended testators state of mind Of
making suggesting corrections wholly failed even in
substance to carry out their fair and obvious meaning
suggested by Mr. Mason why was not the draft
will prepared from them submitted to him for correction
and approval instead of to the Messrs Jones9 Either
mind was in condition to judge of its povisions and
suggest corrections, or it not was, the regular,
natural and, may say, indispensable course, was to
submit the draft to him. If it not, how he who
at seven O'Clock in the morning incompetent to Judge
Of and be consulted upon the draft become capable in
the midst OF mortal paroxysm four five hours after
ntegently to comprehend and adopt the engrossmen9
But what evidence is there that Mr.. Mason at the pc
referred INTENDED TO make will all
pecally this w9 To my mind the evidence to that effect
exceedingly slight while the evidence to the contrary
is not only strong but it strikes me- almost unan-
swerabe.
In addition to the attending and preceding crcumsan-
ces, to which have briefly referred we have the
tents of the itself whose very obscury throws
Highland that very feeble lght-on this branch of
our inquiries.
Here the Judge read and commented on the provisions
of the will and then continued-l
Much has been said gentlemen and very justly and eo:
fha nf facfa
right coeval with the history of civilized man-sprnging
out Of the very instincts Of nature and essential
domestic happiness and social progress
That duty gentlemen, far respects the parties is
now confded to you.
Whether it viii be best discharged by sustaining the
provisions of the instrument before you by substut
ing those of the Revised Statutes in their place it will be
for you to judge.
One thing gentlemen, in the reading of the evidence,
cannot fail to have struck youhat the right of
menary disposition be it ever sacred much
highly valued by Mr. Masons representatives than by Mr.
Mason himself.
He had ample warning and ample opportunity and
least. would have been beyond dispute.
lie not only on various suitable occasions omitted but
wishes therefore if he entertained any different from the
will Of the law, must have been very feeble He
warned and believed the warming early the first
second day OF his illness, that it sickness unto
death The second night of his confinement says the
doctor, sat up with him all night his request be-
that night told him what the nature of his disease
was at my first visit and Mr. Mason said he knew that
day communicated to his family the opinion that
his death was approaching
At this time gentlemen (and it was two weeks before
his DEATH Mr. Mason knew, and his family knew he had
no will he knew and perhaps they did, that the will of
1888 had been deliberately cancelled and lay cancelled in
in the hands of Judge McCoun that that act of cancella
ton, by ITSELF unexplained with subsequent will to
follow it, would have the effect and might fairly be
strued indicating Intention not only to revoke his
previous arrangements but to substitute in their place
the will of the law and yet he permitted the interviews of
the l4th 18th 2Oth and I'D OF September with Judge
McCoun and Mr.. John @. Jones respectvely-men pre-
cisely, Of all Others most suitable to consult withto
pass by not only unimproyed but without opening his
extraordinary, with Mr. George Jones who derives the
greatest benefit under the will if it stands, and in
daily communication with him to the day of his DEATH
he had not spoken during his illness the subject of
will" and Mr.: Strong, too, when asked whether the
Of the 18th stated that 'r Mason had himself person
ally directed them either Of them to get will drawn
for him, says, NO they did not, and understood de-
Mr.. Mason it is said, gentlemen, man of strong
mind and decided character May not infer then and
is not the inference irresistible that if had any will
subject like the disposition of his property it
have been strong WILL and that with his powers Of
speech Of the witnesses swears unimpaired
to the last moment must have been strongly expressed9
Aside from the disputed paper itse-eebly signed and
feeby assented towhere is the evidence OF this strong
will and these strong expressions
1t is for you to find it. gentlemen if you can-n al that
has been read and said before For my part although
bestowing no ordinary time and labor on the search,
thinking of little else for nearly two long weeks have
not been able TO find it.
Counsel for the executors excepted to the charge and
considerable discussion took place.
The jury retired and after nearly two hours debera,
that is, against the validity Of the will Upwards of
million OF dollars are involved in this controversy
Court Calendar--Thls Day.
SUPREME CouRT.-Specal Terminus Is, 43, 112, 1913,
1877, g. a. LOG, 100.
COMMON pIEAs.-Part First-Nos. 245 to 277, odd
bers Part second-Nos 14e ia, 1884, 1873, 2l2 246 to
262, 254, 257 to 27S even numbers.
Srpr CotpT- brap chasA-