The New York herald., 1871-03-13
writing, as wen those for an aga,ns. the genuine.


OF then rs OF good general reputation among their
acquaintances for truth and veraclty and worhinesa
case 'i Tor % admission of the lnstra%cn! % ''to to
probate having been made out by propo-
OF course the burden OF proof OF non-genainenesa
belonged TO the contestant Therefore, in order to
prevent admission 10 probate-the evidence on the
part OF contestant none OF whose Witnesses testify
to any visit at Mr.. Taylor's oce on the day or the
dare o. .e nsper maSt ne round @ snlheemay prspon
virtually TO convict, not her alone but both OF tho
subscribing witnesses, hrsl Of the crime OF being ac-
tors In the commission OF forgery and, after that
OF wufnl and corrupt perjury. Does the evidence
warrant that CONCLUSION ia regard 70 those witnessesS
The Surrogate upon this the contestants theory
OF the case reviewed the testimony OF the witnesses.
The arst in order was that or the experts AZ to
handwriting. This the technical portion OF the evi-
dence, for and against he quoted from and
mented en- at considerable length, with great clear
with established and well authenticated rulings OF
the courts Ia similar cases He first reviewed the
nesses. who swore with more less positiveness
that the signature to the Will was not that
Of M MI Taylor, Taylor, ana then mportanr poins
,airteen Of Witnesses who aw9re that the
his review Of the testimony as to handwriting the
Surrogate said that he noticed particularly that the
opinions Of the thirteen witnesses against the genu-
founded more OF less on previous examination OF
wnat purported 10 be photographs Of the Signature
tograpbed IN different sizes. That again. two OF the
witnesses TO the non-genu;neness OF the signature,
ana WHO WeIe well acquainted Win hT. I6yIOr'b
handwriting, had changed their opinion as to the
character oil the signature TO the WILL From this point
the Surrogate proceeded to summarize and comment
upon the testimony OF the subscribing witnesses to
the Will, especially In so far as that testimony was
sustained, csntradicted or weakened by other evil
point, closing with tho opinen that, upon oil tho
evidence adverted to, II not overcome, should be
compelled TO regard the adnissabilty Of the nsru-
ment In question to probate as fully established"
He then proceeded to note the claim of mconsist-
ency advanced against the VIII, founded upon the
well known anectlonate acts ana declarations OF
the deceased towards or In respect OF his grand
daughter, and upon which 81 am asked to decide
that the paper Is not genuine. and that the sub
scrlbmg witnesses have committed wiiful and cor
rupt perjury, besides being accessory TO the crime
1t is obvious that evidence OF that character must
be overwhelming IN order to mpeach The genuine
ness OF an instrument, supported by such positive
testimony as have before me. somewhat wider
her proofs IN these respects, than now appears to
nave been necessary; but, ut tho time, did not
feel Justified in combining counsel to such narrow or
rigorous limitations as might exclude testi-
mony bearing on the Possibility OF the
IN the desk or the decedent tand by him Identified
as the very paper that came rom his ONCE with tho
and which might thus prove an executed, and not
merely contemplated, testamentary purpose, moro
Instrument now in question:; but the evidence pre-
sents no ground for believing that will, like the
executed, and not having been done 1t Is to be
regarded as only expressing purpose and dis
POSITION lie tneU entertained, DuG uIUIWATu nelu In
suspense, ana must hold to have been, finally
abandoned; and 1t Is, therefore, now to be consld-
cred like any other declarations OF the decedcnt,
made three years before the Gate OF the propounded
instrument, and indicating more liberal views OF the
disposition Of his property rope, toward his grand
the scale OF evidence compared witch acts aud de.
clarations three years later after the event Of his
granddaughter's marriage, and under the other cir-
cumstances proved IN this case.
;. Notwithstand!ng very considerable degree OF
OF the decedent's declarations OF intention TO make
different disposition OF his property in case OF his
Dracing declarations az long ago 1857 ana ofered
In connection with tne paper % 80 draw drawn by MT:
consummated, fyet limited the proponents in their
olrers OF declarations OF the decedent as to his
ss vns axs o WIN me sn 5sSpa
paper to declarations made by the dece.
sseH that s he aa made S hs any
ments by him OF any OF Its provisions corre-
to so as 70 be Gs IS e. as
proof but only as corroborative testimony Of the
Taxing the evidence altogether, on the part OF the
contestant to show declarations OF decedent that he
had In fact executed VIII like that prepared by Mr.
Marsh 1t Is so sight and unsatisfactory that 1t
hardly necessary t. comment upon 1t in detail.
That he did not wholly abandon the thought Of
true, as Mr.. Van vechten tesilfes that very
shortly alter the marriage . the decedent
necessity OF chsnge In his WILL the inquiry having
reference to whether any property would vest in the
nuSUanu uDUer IL ana nc was lOlu Dy MIN NOT, ana
one other Witness MI Cooper testlles to some con-
versation with Mr.. Taylor soon after the marriage,
in which he expressed MS Intention not to alter his
Will, although he had, 1T a prior interview with
him. just after the marriage said he should alter 1t
so that the young man tthe hnsband) would not get
that at neither Of tho several interviews with
SIR. Taylor In which he referred 70 a VIII did he
say distinctly that he had executed one. DEEM
clear nat, In speaking before the marriage, OF any
Will, made TO any OF the witnesses who have tes-
tifeu on that point doubtless win the impression
from what he said that one had been actually
signed), the decedent referred only to the unexe-
drawer Of the once desk, aud which Mr. Marsh
shows was the very paper left with Mr. Taylor to De
contestant speak Of any declarations OF the kind
made after week OF very short period sub
any other support or nay conclusion on that subject
1t s that Mr. Marsh, who acted as MIS- private coun-
sci In the preparation Of the paper, anu whose name
was inserted as an executor by the express dlrec-
tions of the decedent, tesnes that his relations as
counsel and his friendly and intimate relations
with him, continued down to the period OF his death;
that he went to decedents ONCE on Wednesday TO
see HIM on some important law business and found
home and declined going on with tho business be-.
fore him, ana that ne died on the Monday aftef,
as Mr. Marsh is silent as to any reference
by Mr.. Taylor on those occasions to the existence
left to infer that Mr. Taylor said nothing to him
about IT, which was certainly remarkable under the
and still in force; but no. perhaps, singular II
another Will, not drawn by Nj. Marsh had been In
fact signed. oTnhnR all the charities mentioned In
the unexecuted paper consisting OF those named by
Mr.. Marsh, under the authority OF Mr.. Taylor in.
sert any he deemed worthy OF bequest, In both
Mrs. Taylor and Kate died without issue.
On the other hand, the case furnishes the 70 low
ing testimony OF declarations OF the decedent made
after the date Of the propounded instrument June
80 1870, and corrQPoratYe OF the fact Of the exist.
ence and execution Of Such paper, IN lily 5udg-
ment class OF evidence not only admissible, but OF
great Importance upon the question OF penuineness
OF the iactun, when such declarations are proven
by Intimate and confidential fitends who are clear
and DOSitIye IN their State6ceQta
and especially when 1t appears that they were made
under such circumstances as TO show that the decla.
ratons were earnest and sincere, and could hardly
have been misunderstood.
The Surrogate then briefly recaptuated the con-
velsation the deceased had with several OF the wit
nesses that had been examined, with regard to the
will he had made, providing an annuity for .kate'