New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-09-08

duty OF the court TO strain after probate nor IN any s
grant it when grave doubts remain unremOVeu: w
not understand the contestants counsel as cihi ,s
that Mrs. Gardiner In bored under any sncD lncapac
Mr. Parish but this court referred 10 the csse
of Deafed rs. Parish establishing among other
rules the rule last referred to as guide 20 the popa
of wills.
There is another objection which is unfavoraole
to the admission of this viii u probate, inc
who BY its provisions take the largest portion
of the estate, she calling the witnesses sennlng LOT TUG
LAWYER and sending at the time full Instructions
in her own handwriting to the provisions OF the WILL
none of the other heirs at law being present at the time
of the execution of the will the testatrx Mt the time Ia
boring under severe sickness asd being within three
hours of decease under this state OF facts asse
that mere formal proof Is insufficient.
The testimony OF Miss Cooper and Miss striker lna'
Nrs Gardiner at some time In August, amer MITE
Ter had taken up her abode IN the iay ny, y, nui 49,
asked them about a lawyer to write WIZ Tor her ooes
NOT snnnly tie proof to show an intention 10 give tc
income OF the city property TO mis-. lyier NIT
diner did not at this time send Tor lawyer 10 ,ia
her will nor did she until very near her dissolution
ana then il appears from the evidence, the lawyer was
sent for by Mrs. Tyler. think 1t may De ihII! pr
sumed that within time so short US loul % I've at
nrecednC death the facilities Of an Invalid are NeaA
ened and impaired; and the question natnfuy al.e,
why was the change In Mrs Gardlners $50
DISPOSITIONS left until she arrived az that point
There is another ground which, In my oplhon ~ in.n
IN the will The evidence showed that MIS- TarulheI
at the time Of making the will and for some tpe pr
yious was under influence inconsistent i'h S
~ sufficient soundness and discretion TO resn
late her affairs in general l think donihloh
over her by Mrs Tyler is established OF such charac
Din her feeble state OF health) as 10 prevent '
else Of such discretion -. ~. A.
II appears by the nncontradicted testimony OF MIS-
Gardiner that Mr. Tyler had acquired an Innuen I
over her mother that 1t was dlincuit lor her ~
Mrs Tyler a competent witness TO disprove TINS lnnu
ence did not deny it, subject herself to an eAamina
ton a witness. ., ~, c..,,or
n ,,,a, anff la
Mr. Clark thought il necessary 10 ask the Physician IL
she was in a fit state to make Will ,--., NJ.
IL appears indirectly in Mrs Healys testimony that
shortly before Mr. Gardiner left his mothers house sue
heard Mrs Gardiner in answer to question put ~
one of Mrs Tyer's children Grandma, why doh !
YOU send Uncle David awayT answered Dy saying
" He is my child" , H..
II anncars in the letter OF Mrs Gardiner, written
SUBSEQUENT 10 this event and interlined by Mrs lye
in which David Gardiner was requested 10 leaFe we
house OF mother who IN ber healh was m u WV
claims he had on her for managing her property O.
The erroneous impressions under wdich MIS-. gar
diner abOred to advances 20 her son ohd te heCes
sites Of her daughter think tend 70 snow tua' ne
mind had been warped and influenced ana
the failing state of her health and Dependence
on her daughter about her couch. made resistance
TO her will a matter of great difficulty -.
The evidence produced the part OF the propoheht
10 prove the mental capacity OF the deceased al tue
time Of the making Of the will, am compelled 10
as unsatisfactory; the testimony OF MISS otlAeI.
Cooper and j. c. Smith the three witnesses prouceu
m rrove mental capacitv appear have founded their
belief upon general conversations with the deceaseo,
pon subjects which were rot much calculated 10 test
the capacity OF the deceased as TO memory or
or capacity 10 resist importantly and one oil those
noses being a casual acquaintance met WIN I'D Tue
street. and all the testimony OF these three witnesses
epplcs 10 period Of time prior 10 her visit To lsp IN
or about the month Of August. There is no testimony
bearing with any force on tie suolect covering tne
rerod between Mrs. GARDENERS return to the Island
from Islp and the day prior 70 her decease ana the
opportunities which her physician and lawyer nae oI
forming d correct estimate of her mental strength ana
capacity al the period Of making the VIII appear 70 me
10 nave been very limited; the deceased was durll
all the time under the effects OF disorder which must
have had as appeared from tho testimony the effect TO
| preclude any connected and extended conversation
lending 70 bring ont evidence OF mental strength anu
| capacitv 10 resist influences or importantly. ,.
From careful examination OF the testimony IN tnis
case think it is brought within the rule against az
hitting instruments to probate as Wills lt was Cd
tanned from diving woman is contrary 10 previous ties
tamenary dispositions made by her in health was pro
cured by creating Misrepresentation OF facts as 70 the
yalue of property bequeatbed 10 her SON. and there
fore refuse 70 admit the will 20 probate and order and
decree that the instrument offered for probate Is VOID
and of no effect as will of real and personal estate
and II is further ordered and decreed that the fees OF
the County Judge and Surrogate be PAID out oil tue s
tate of said deceased