The true northerner. [volume] (Paw Paw, Mich.) 1855-1920, 1871-04-07

uVering the opinion ana Judges lngraham and
Barnard concurring on a state of facts from
which 1t appeared that the will there in ques-
tion was drawn in the Office Of Hurley ~ Miles,
Attorneys, New York City, and that the testa-
tor did not say anything to the witnesses about
the will, but that Mr., Miles did request them in
the presence and hearing OF the testator to
witness the will. The Court said -" The
testator understood the business which was
then being transacted. He made no objection
to the declaration or request made by Mr..
Miles In his presence and hearing, but proceed
ed to consummate the business for which he
came there-the execution and attestation of
his will. The intent to execute his last will
was thereby published and declared, aud was
also acknowledged by the testator and the wit
nesses were by him requested TO become at
testing witnesses"
cannot entertain doubt but the execution
of this will Of Cramer's ID prima facie estab
lished by the evidence vide also run.son vs..
Tunson, Surrogate Rept 13S Gombaut vs.
Public admin id 226.
PROOF OF LOSS OF THE ORIGINAL INSTRUMENT.
The original instrument not being produced
in Court, the proponents showed its loss or de-
struction subsequent to the death OF Cramer
as follows: Mr.. Upton says" The will was
left with me. placed it in an envelope and
sealed il up and endorsed on the envelope the
words, The last will and testament OF Rollin
Cramer, and put it away among my papers. !
afterwards moved my office to Decatur In this
county, taking my papers with me. l saw this
envelope among my papers at Decatur, and when
saw 1t last should say from it's appearance 1t
was just as | had left 1t. My Office IN Decatur
was burned on the night Of Oct. "a, 1869, and
with it we're burned all my papers. | know for
have never seen any of them since tue fire.
l saw this envelope short time before the fire.
1t was burned with my other papers with my
office. know it was burned as well as know
my other papers were burned.
FURTHER PROOF OF THE ORIGINAL BY PAROLE
PROOF OF ITS CONTENTS.
Mr. Upton says on this point, that in drafting
the will he used form in the Clerks Assistant
and that - l took the Introductory part OF the
will aud the attesting clause from that book
the body wrote in. l think l recollect the
substance of the will. The first provision was
that all his debts aud the expenses of his fun
eral, should be paid out of his property after
his decease. | think something was SAID about
tombstone to be put at his grave after his
death after that he wanted all his property to
go to Morris Steadman, or his heirs or assigns.
There was an executor named in the will-Mor-
rib Steadman. 1t seems to me that the prov!s-
ion for the tombstone was put in the will. The
Will purported to dispose OF all his peoperty
and left nothing to any person except Morris
Steadman and his heirs" Mr. Ryan says on
this point heard Mr.. Upton read the will.
cannot recolect the contents, but ! under
property was to go to Morris Steadman. |
don't remember about the executor. [ don't
remember about the tombstone, and l do re-
member their talking (Cramer and Upton)
about the property going to Steadman."
James Harris, witness says: p" In the lat
ter part OF July, 1868, ! remember Cramer
talking about his will. He said he had made a
will, lie SAID he had wllled his property TO
SteadmBn." Several other witnesses testify
directly to Cramers having said before making
the will that he should will his property to
Morris Steadman, and after 1t was made that
he had willed it to Steadman. among them be-
ing bis mother, who is clear in her recollection
of her sons expressed intention to Will his
property to Steadman before making the will
and after he had done 30, that he had wliled
his property to Steadman.
Courts are properly extremely cautious in
allowing lost instruments to be established by
parole proof OF the contents But this has
been frequently done even i'll cases OF last
Wills and it only becomes in each case for 1t
self question of the suficiency Of the evil
dence offered-Dudley vs.. WarneI's Ex. Al, Vt.
8 Met. 487 Featherly vs.. Wagouer III Wend.
500, 1 Red. on Wills $40. In this case the wit
ness, Mr.. UPTON is disnterested and a repu-
table attorney at law. lie drew the will in the
ordinary practice OF his profession; and his
familiarity with the method and forms OF such
fortify and render his recollection
of the contents of this one moro satisfactorily
than otherwise could have been the case.-
Courts have ever attached great weight to the
testimony OF disinterested witnesses testfylnS
of matters occurring in the line OF their pro-
fession or business. Humphreys Will, Sur
rogate Repts, 142 Mr. Upton's recollection OF
the contents Of this one is furthermore strength
ened by The concurrent testimony OF Mr.. Ryan
and MIR. Harris, and number or others, as to
the fact of Steadman being the sole legatee OF
all OF Cramer's property by the statement to
which above alluded, made by Cramer before
and after the execution of the instrument and
also by the fact that he used in drawing the
will a form from the Clerks Assistant by re-
curing to which his recollection OF what he
drew would likely be freshened and confirmed
The proponents here rested having estab
lished their prima facle case. But the contest
ants raised an issue with them aud denied
the capacity or soundness OF mind or Rol-
lin Cramer at the time of the execution OF the
propounded as his will, and offered
on that point which for brevity
will to some extent collate with the rebutting
testimony offered by the proponents. On this
point however, the evidence gong to the extent
or degree or the mental capacity OF Cramer Is
somewhat conflicting. Thirty-one. witnesses
were examined to give their opinion OF the
strength OF his intellect and the facts and OBJ
servations on which It ID based. Two impor-
tant circumstances are not disputed, viz:
First, That he was afflicted with Chronic
Chorea or st. Vitus Dance, which grew upon
him to the day OF his death, and rendered him
measurably incapable of physical exertion; by
which the contestants urge priori his mental
capacity became impaired and he eventually
demented.
Second, On the 9Th day Of March. 1867,
about two months before the execution OF the
will, Cramer was by the Probate Court of this
County. adjudged incapable OF taking care Of
himself and managing his own property" aud
a guardian appointed, and such guardian had
not been discharged. From which the contes-
tants urge posteriorl that he was incapable in
law OF making valid will. The importance OF
this requires a somewhat extended examna-
ton Of the testimony OF his peighbors and
friends given in the case. And L shall give the
substance OF each ones statement bearing up
on the point.
On the part Of the contestants, Mr.. Stock
we'll says after the guardian was appointed he
(Cramer) worked at my house and boarded
there. / thought he did not act as sound as
formerly. | can't tell anything he said or dld
that showed want of judgment. had some
with him few months before he
died. He did not act as we'll as usual; ap.
peared downcast. lie didn't talk as soundly as
he did before. Some things he said were sound
but some things we're not. think it was his
disease which affected the muscles OF his face
and limbs
Ubar,es Hathaway Saws. "I had not seen him