The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-05-08

/ IT. ey swear to a prolonged conversation and an
| tmo mt OF mental exc uOn on the part OF Chrlsty
hh h, IN view vi the other TESTIMONY, Is, TO say the
least, extraordinary. 1t may well be that Christy
mace, answer 10 questions put to hlm, but that he
pOs essed sufficient reasoning faculty to himse to
onpn ate an idea respecting the will is RAINY
not 10 BE- Ooked TO- under y circumstances of this
case. One o. The witnesses is one OF the executors,
lawJ er, and the chief party pressing the probate
OF the Will al other IL one OF he subscribing WIT
nesses lawl er. and attorney Tor one of he eXGcu
tors; the hind the other sub or bing witness. IT
VIII be perceived that all these w.tncose' have a
great teIet IN SUSTAINING the wiz, the layman to
avoid the in putatiOn of having witnessed a WI |
MADE by an incompetent person, and the two law
yers IN aGdi ION 10 TINS, the further interest in
estab ish ng the cause OF their clients.
The witnesses yng unoeI the Uias Ofthis interest
would naturally give 10 their testimony shade and
cOlonng IN support Of that bias, and this even
Gently. Under the influence OF this bias one OF the
witnesses sSears that ChrsIy he up the will in his
hands, looked at 1t and smied while 1t is neon
testaby prov en- that by of paralysis CnrlstY
was unable 10 move his hands.
AnUtl er of the wItn swears that Chrsty, in
oroer chow how much better he was smiled, and
moved bis head irom side 10 side. making remark
at Il same time, wnue all the testimony shows that
such movement of the head ii possible without pre-
az n death, would produce great pam. 1t under
the influence OF bias, the WI nesses wOu nnocenty
sw ar TO these matters it is not unreasou alb to
cude, under the whole estimony in the case, that
they Lave also Ju as innocently put in Chr s;y's
mouth language which emanated from others ana
ascr 0ed to HIM power Oh ratiocinatIon whlcn he
do not DOS, ess
Innyytw, the evidence of these witnesses is not
under all the circumstances of the case sUficent to
carry the paper and question TO probate without at
Cakt, verdict o. jury. Under another aspect the
ties monJ OF these wItnssseseven suDposing that it
cor ectlY d, tai the circumstances, without any
colOring devIat OH from tue exact facts and Is
not contradiced in fhe Iohfest degTeoNU,,,Id NOT
under The authorities ted in this opinion, be sui.
cient to carry this paper to probate.
During the whole OF Chlsty's illness, and while
the wi II was IN course Oh preparation, allusion
is made, either by HIM or any person, to wife HaT-
rlel 1.-THE term wife Harriet Is used for the reasons
hereinafter named) his sons, showing, as hereIn-
after stated, that he had not the memory of who
required by the above-cited authorities.
Further than this, his sons were not only not
invited to attend, out were excluded and this too,
VIII comparative strangers. as Lowell, Snod-
grass, and MORGAN, were admitted to his pre-.
sence Judge DEMO, in his opinion in the Hop.
per case, says: IL tank, alter it was seen that
he was dying from an accidental injury it was the
duty OF ont, standing in such a alton to HIM as Mr.
Shafer did TO enOeaVor, at least to put hum in
munlcation wth those who had natural right TO
protect him."
Assuming las has been frequently said we must in
this branch OF the easel that Harriet was lawfully
marned to Christy, and that William ana Byron
his legitimate sons land beirs-at-law, Mary
stoou IN such Oslton as to render it her duty to
invite his sons to attend, rather than to exclude
them.
In conclusion, considering the insanity which led
to the injuries resulting in death twelve days after
they accrueo also the paralysis existing during the
wi ole OF that me; also the great weight of the
medlcal testimony against the existence of a sound
and disposng mind; also The necessity deemed to
exist by the persons IN whose favor the will was
made tor a me- dical examination as to sanity; alsc
The exclusion OF the sons from the presence of their
father while the will was in contemplation also
that dece ased, while lying ON his death. bed and
contempat no making will in view of speedy dis,
solution, once referred to his wife Harriet
tthe term "wife Harriet" is here used because the
Surrogate so assumed and because in the fore part
of this opinion it is held that that tact must be ex
amined in disposng of This branch of the easel or to
his sons, TO whom he lying that death bed must
have referred if in sound disposing mind SINCE
in that event his memory must have passed his
whole lie in review, and, chastened by the hand
of God, woud have reflected on the injuries he had
done them, and have endeaVored TO make
some reparation Or il still stubborn in spirit would
from his very nature have made remark indica-
tive OF his anger towards them Considering all these
things the question to the validity of this ged
will should at least De submitted to q iurv Decree
of Surrogate reversed, with costs of appeal to appel
lants, while the events and issues directed to be tried
by jury. Issues TO be settled on notices.
Hon. Charles X Smith, Benjamin L. Blankman
counsel for appellants, Harriet f. ChrIstY, Paris G.
Clark, executor and counsel for respondents.