The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1866-11-09

offered for proof Is, in its most prominent
characteristics, at variance with the intenG
ttons OF the deceased, as proved by the state OF
ms anections, his previous declarations and
e53Ieeuuon; strangers were the witnesses be-
sldes them the sole person present was the
husband OF the chief benedciRryS none but
Mr.. MOWryis hand Is seen in the affaiF! nom
It's inception to its close. There Is no tndica-
ton that the Will was known 70 the fanilSto
exist until atter the deceRees and, whether
conhived or not, the whole tfansnction was
in tact accompanied with complete privacy.
In view OF the mental and Physical weak
ness OF the decedenf, I cannot, Ia the fHSe of
such tActs as these, sustain this will; and it
must, therefore, be denied probate, on the
Sronnd Lnat the proof Is det1ciep In not RE-
toFuing such satisfactory and decisive eVi-
dence as the circumstancesd demand. : lfas7I
Those are'the circumstances that re-
quire explanation here. i read from
the gentleman's authority. I read from
the same case which he cited, in which
his own authority declares that thew
are called upon to explain the transac-
ton and show it was free from fraud
or tntentto defraud anybody; and es-
peoially when the parties have taken a
beneht through this Interference of
friendBs1 Mrs Elizabeth IS. Thomuson
took very large benefit from it. ~ d
Gentlemen have said here that the
williof 1852 treated these parties in the
same way. That is mistake. II IL
mad 1t would not have helped this case
any but that is a mistake. The wi IL
OF 1852 did not treat these parties in this
way az all. In the first place, there is
noeVtdence what the will of 1852 was
The gentlemen attempted to make owl
dence TO show what it was but they ut
terly failed to show what the will of
1882 was, because the will itself is the
best evidence of what it contained and
before they can make any paroleIproof
of the contents of the Will-haVinR
nfnVf4n Will tod fVnT
far as they had any right to go-it was
for them to show It had been DESTROYED
They undertook to do it, but utterly
failed. The witness was arrested in the
attempt to testify-Or to answer the
question that was put to him (the wit
ness acting in good faith, of course y
objection WOS made, and Sustained by
Your Honor, that the witness could
not testify as to the declaration of Dam
tel Steenrod what that paper was: lust
for the reason that the witness had not.
seen the paper; it was in an enclosure
sealed up and was not openeda But
supposlng they pTOved--aS they did
that words wefe written ON the back of
the papar-"This is my willp-there
were two papers-there were three pa
persi really two in ninclosures-two that
were destroyed. What is the result of
ttf They did nOtprove the destruction.
OF The will of 1852, and have not proved
that obtains in this matter /; and that is,
the witness disclosed enough to show
that whateY9f that paper was, Mrs
Thompson advised the destruction of it,
and thattf it was destroyed she tlestroy-
ed 1t with her own hands, The rule Of
law ts, In sucha case, that II the party
has destroyed a paper which was in
writing and seeks to. prove the contents
OF that paper in the court in which the
party destroying the paper is ono of the
suitoEs-a party litigaut-such party
shall be estopped and shall not be per-
mltted TO proveanything about the pa
per that the party has first DESTROYED
until evidence is introduced to satisfy
the court the destruction OF the paper
was for no fraudulent purpose or de-
sign-a good rule of law and a good
rule OF common sense. People are not
to go and destroy and then mike it con-
venlent to prove what was con-
tanned IN the paper destroyed,
because the law presumes that persons
interested in the production of paper
would not destroy It If it contained
anything TO their advantage, and If to
their disadvantage, they shall not de-
stroy 1t for the purpose ofgetting rid Of
that part 1t which was not to their
advantage, and prove such parts of it as
suits their purpose. And hence there
Is no testimony before this jury at all
as to what the will of 1852 was, exoept
this which Mr.. Jacob was permitted TO
testify: that in 1852 he drew a will for
Daniel Steenrod; that he executed It,
he himself being one of the witnesses,
but not remembering the others. He
goes on and says that he made draft;
and produces the notes of the draft.
me notes were admitted as declnra-
tions of Mr.. Steenrod and not as the
contents of the will, because the witness
had disqualified himself,-eyen If the
foundation hOA ham Lot r
the contents of the will OF 1S52-which
II was not-frOm testifying as TO the
contents, by declaring that there were
some additions made that did not an
pear in the notes, and he did not re-
member what those additions were.
now the gentleman was quite mistaken
IN supposing the will of 1852 threw anY
light ON this subject atall, but he would
not nave been mistaken II he had
come to the conclusion the. notes
OF George Thompson of 1852 threw a
good deal of light on this subject; that
-, they shOWthRt he was attempting
then,t 70 get an unequal distribution OF
the estate of his sfather-in-law. 1 know
these notes do not disclose that his wife
received any such share as is contained
IN TINS last wiu.i Not by any means.
For my own part { l!fll-
MIR. kEHHoN, interrupting,-Are YOU
taking the distinction between the copV
i MIR. .BINGHAG-The will is not before
us at all, and therefore l am not taking
any distinction between them, / say
the Will of 1852 Is not before us at all
never was. The gentleman himselfc can
certainly not make any mistake about
this matter. He moved himself to
prove the contents of the will of 1852.
and wanted to prove the declaration OF
Mr. Steenrod showed that was the will
OF 1852. made the objection; and what
look placef In the presence of the
court and jury the argument was made
pY the opposing counsel and myHelf:
and lundertOok to say they could NOT
prove the revocation OF the will by the
declarations of the testator, except the |
declarations he made in the act of its |
obstruction. But independent of his |
uscleralons, they must prove the fact |
Yr qeStroytlL9 the paper, and the |
were merely for the |
purpose of proving his i,atellttOls
IN IN reference to the burning
now they proveiby these notes, drawn
up IN the handwriting of George |
Ihompson, that he was attempting Rs |
far back as 1852 to make a wilt for'' bis M !
tather, and get up an unequal disEribu-
t1o3 ofhis father's estate, 70 secure for |
various persons of his father's house. |
and seepre for himself at least, more |
than his share in that estate. All these
notes are in his handwriting. Now 4
only refer TO It for this purpose: thnt
Inc alteration assuming the Rentle- |
mans position, that has been made in |
thls pehalt by the new will OF 1862 over
tne ProVlstpns contained In these notes,
Wnich The gentleman was pleased To-
l;all q VIII of Daniel Steenrod, for his
! tuaugnter Elizabeth, being an alteration
FNF u 81