New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-09-08
THE WILL OF MRS. JUllANA GARDINER.
DECISION CT JUDGE METCALFE.
sURROGATEs COURT. RICHMOND CouSTr-In the mai
ter of proving the will of Juhana Gardiner deceased

Henry apnears for the executor and Julia g. Tyler.
Mr. William Watson for the contestant, David l.. |
Gardiner.
Edward b. Merrill the special guardian Of Henry |
Beeckman minor one of the heirs and next Of kin
Of the deceased also appears Judge james j. Roose
vet the executor named in said WILL offers the same
for probate David L. Gardiner OF the deceased.
appeared by counsel and opposes the probate On the
ground that the will in question was obtained from her
when she was in very enfeebled state OF body, and
shortly before her death and under circumstances
tending to show undue influence exeried over her by
the ecatee most interested in sustaining the WILL
is likewise alleged that the will itself shows that IN con
nection with the testimony that the deceased was
aborinC under a uisnpprehenson OF facts, ana that
this msapprehension created In her mnd by the
same egatce The deceased at the tihe OF heT aeat.
was nosspssed Of valuable real estate IN the City Oi
New and of the house and grounds on when fhe
lived in Richmond County. DAVID l. pardlher, her
only Julia c. Tyler her only daugh,er ana nehry
Beeckman. the child of deceased daughter arc hei
only heirs at law and next OF KIN
IL appear, from the testimony taken. which shall
consider in the order OF time that INC eohtestauo
David L. Gardner, on the death OF brother, IN OF
abon the wear ls5l left California and came to reside
with his mother in NevYork. lie continued 10 i've
with her managing her affairs, from that time 20 req
rnory 1891 In the year le5s when in full health she
made a will giving 10 him more OF her property tnah
10 her other heirs because as she stated at the ue
be had managed her property. III NovemDei, ioo'i
Mrs TYLER with her family came from Virginia, anu
,oos nm her abode with her mother In the month OF
February following. David L. Gardiner was requested
by letter from his mother IN her handwriting Dut III
terlincd in one or two places in the handwriting oi
Mrs Tyler 10 quit his mothers house, when nc uid AZ
once. Mrs. Gardiner was in falling health she was
confined mostly to her for two months before he
son cft the house but i'm August was wei enough 70
90 10 New. York aud 10 Islip from which place enc
returned in the latter P1I T SI W@s with her
in her last Illness On the 80 0i OctoOer ATE
| Tyler sends directions TO Lot C. Clark, esq. to
draw viii for Mrs Gardiner, according 70 lpsu u
tons which were in the and.writing Of Mrs Iyler
and furnished in the etter 20 MI Clark Mt: tIath
repairs 20 the house and Mrs. Tyler and informs
her that the instructions must from her moher
the matter is postponed 10 the following day men, upon
Mr. Clarks coming to take the directions OF the tesla
trx she asks him If Mrs Tyler has not given them
mon his SAYING that they must emanate from her she
substantially repeats the instructions before sent nm w
Mrs Tyler he calling her attention 10 particular run
the memoranda made from the letter sent by Ms yer
10 him. Mrs. Tyler present during the mteI'lsW
and assisted her mother who was very sick and Mt
Clark at no time being left alone WIN Ae no,her nl
in hour he was again sent ioI 10y AlTs ysI =. oo1
Al once Tie will is executed Mrs Tyler being present.
assisting her mother who was vomiting and IN so low
condition that MI Clark inquired OF the attenuihg
physician i she was ID state III 70 ln.Ag VIZ
Gardner died within three hours aer the lbsiIugnt
| was signed Ry the first cause Of this VIZ, MIS-;
Gardner gave to Mrs. Tyler her entire PERSONA
| properfv and the house ana grounds GA when SIZE
resided Ey tie second she gave 20 Acr son David al
the advances she had made lin for the purchase OF hS
farm at Mortified ard all other claims ny tue thHd
l sic one ulF n % lll. low % l.vl''Nf ~
son Henry Bcockman and divides treeo between
her son david l.. and MTs. Tyler but she gives ne
rcnts Of Dlyids portion to Ms Yer Tor ne, or un.a
the los damage and injury which her property situate
/ near Old Point Comfort and her property situated
ON the James River. ia the state Of virginia. mas
sustained during the present ciyl war; sAhH Oc Iein
! bursed 10 her by the Federal Government
/ IL can hardly admit of doubt from the eNlGehcs
offered by the contestant, that this viii was executed
by Mrs Gardiner unGer misapprehe sion Of facts VI
two important l1tte1lht'' hs 10 WIZ n r, ri, ~
the viii has not furnished any explanation FIST she
was under belief at the time OF execution tt inc so
had received advances from her 10 buy MS hIIn ana
was indebted 20 her for other claims. ana that IN re
Hngnishing these claims she virtually bequeathng
10 him an interest Of considerable Nalue bIt lhls was
shown 10 BE- a mistake By the uncontrldicled evidence
\ Of NJ Gardiner strengthened by the presumption
growing u her former VIII and statements made
M the time In Mr. GARDENERS viii OF lcJ- executed
when in sound health, and tYe years AFTER Inc
son bad purchased rs iaIn' she mace mace
mention On, o cop Gayanf informed Mrs Hoyt
a Ialy 70 whom she mentioned the making OF her Will,
that She was under obligations 10 him Tor managing heF
property aud had given him larger portion OF u IMAM
Size had nv her other heirs Ii appears rom the
! evidence ~ Mr. Clark and Miss cooper thAt Mfs.
Gardner was under the impression that MTs' l!Ier
was poor and her sou David was rich, whereas u ap,
pears from the evidence Which Is Wholly uhcohFadieleu
ty tie prepayment that Mrs Tyler was me owner
residences In Virginia and fifteen lundred acres OF uu
formerly occupied by President lyltr maue ur uho
unavoidable bv the war but not diminished IN It's value
To sDy great extent and that David l. Gardner was the
"
other property. How were these mlsappiehehslohs
brought ahouti IL s PLAIN ron the VIII oi Io'c tha'
size dld not entertain item nj that time lie poPo
ncui the only person VINO had an interest III creating
them; and from the fact Of her being constant attend
ant upon her mother during her last illness she ha am
ple ouuortuuiy To 80 one OF toe principal OBJECTS
uf me crosse Examination OF Mr. Gardiner by the eN
ecUtor in person and by the counsel oil Mrs IytE ap
uears to have been to establish the fact that David l.
Gardiner had paid bis mother nothing Tor his board
during fourteen years residence with BIS mother. ana
had received the rents Of his mothers estate and not
accounted Tor them or applied them 10 her uses aud
with Tbs view the bank books anu Cucth, o the con-
teuuf were called for aud produced, and underwent
critical examination, Tut as far a. eouId understand
the ease the prop0nen failed 10 find any matter nom
tluse books or from Mr. GARDENERS cross examination
which would lead 10 an inference that be lad applied
his mother property 20 his Use that she had
made any pecunary advances 70 lin. eitLcr for the
pufc hasc OF bis or for Utner purposes. me SON. II
iupcars from the testimony, lived with Lis mother for
number Of years daring al that time attending to
her business affairs and after the purchase OF his farm
II furnishing considerable amount OF necessary articles
for the use Of The family from his farm. saving what
would probably amount 10 equivalent for the aGdi-
tiona cost of Mrs. Gardiner household by his aten.
ton 10 affairs and 0y the supplies furnished from
bis farm. Had tie proponents counsel succeeded IN
establishing these facts u would have appeared that
Mrs. Gardiner had claims for advances and FOR
board; having not only failed but the contrary
, being made to appear without any contradiction from
the prepayment appears clear me, that the will was
made under msappthensOn OF facts ANA that the mis-
apprehension consisted in Mrs. Gardiner being made
10 believe when IN feeble health. that her was ia-
ehed her for advances made hv her for the purchase
Of hls farm. and indebted to her for the main.
y tcnance Of his family for number OF years.
On the part OF the contestants 1t WAS proven that he
bought his farm IA lsj With funds OF bis own earned
bv him while in business IN California. At the request
o the proponents council be produced the bank book
in which entered the sums received as Agent OF
bis mothers estate from l-l To ls0 aud check books
and made full statements showing 10 what uses the
moneys received had been applied The contestant was
subjected To long ana searching cross'"Aamnltion
both 10y the executor person and the counsel OF Mrs.