The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-05-31
MADAME MACKAU'S WILL.
An Interesting Argument In Very Inter-
esting Case.

lFrom inc Phladelph1a Telegraph, May 90
The argument Of this cause on May was reported
in fun in our columns, when 1t was before the
Registers Court on an application Of James v.
to try by jury the validity OF the viii and to have
1t declared void. Our readers may remember that
during last summer we published this will Caroline
Mackau, the decedent, was generally known by the
name OF her first husband, Manure, q Frenchman
For many years she resided in large, od-fashioned
house, with elegant grounds laid out around it,
and fronting on Christian street. Here she con-
tinued to reside until shortly before her death,
which occurred at the age OF nearly ninety years.
During the interval from February to June 23
she made and executed three wills and two codicils,
few legacies, she hequeathed the remainder Of her
estate to her grandchildren. Under the last WILL of
June %, her legal adviser becomes her resduary
heir and executor. This is the viii in dispute,
which is as follows:-
Caroline Mackau make and declare these presents as
and 40 for my last will and nd tes,amens,
sn S hs ne as of sn 9s. and
her such token and legacy hereunder Gree taxes
and sWslTy hereby and beiuea!hea heF
dissolution he may in his sole Judgment discre
S a sum m Sss sa
s act S n rec nS nm to and empha
Judgment and action the premises they are not to be
questioned Or disputed BY any person in any way His
haye heretofore donated to my friend Constant Gullou
e nd Ses y rscos
n1n Of %. h long continued and poorly regnited
Kindness through many years In order 70 obyiate all
@ ns6s Ss the s" 10
al portraits belonging to me as he think proper and
In order obviae all doubt in regard to my donation
n m aGE ana y and Sann n r. my
s An1e sn 90 hereby the said
be entirely unnecessary but on The other
hand they may sayS some Ms explsn;aS
property whatsoever and wheresoeyer give devise and
BY name and appoint the hereof This beGnest
sH him ana ass ns Of
the legacy abOye given Il but barely possible there
authorize al and empower my said executor grant
which Imay be entitled at the time Of nv decease With
ont any Liability on the part Of any purchaser to the ap
Witness my hand this sd day of June A. D. 1871
Signed published and declared by Caroline Sackaa as
and for her last win and testament June % 1871.
MATILDA JOHNSTON
The grounds on which 1t is sought to set the will
aside are undue influence In procuring the win
and testamentary incapacity II is further alleged
that the will In question was never read TO Madame
Mackau; that she signed 1t without Knowing what
were its contents and that its contents did not rem
resent her last wishes, as expressed very shortly
before her death by herself.
In support of these allegations the young woman
who nursed her, and occupied the position of a
confidential attendant testified that she was pre-
sent when the will was brought to Madame Mackau
for her signature, and that IL not read TO her
In this she is sustained by the parties witnesses to
the Will that the reason she assigned for making
this last paper was that she wished to give some
directions about the disposition of her horses and
carriage, dogs, portraits, DC.
In previous will, dated June 15 1871, the tesla
trix, after making some personal bcquests left the
residue OF her estate to her grandchildren. The
evidence showed that after this date the old lady
was induced to revoke the will of June l5 and as
alleged, executed the will now In dispute in which
she disinherted her grandchildren.
The evidence also raised strong doubt as to
Madame Mackaus competency to make "a will, she
being sick in bed at the time, and at times under
the influence of morphia given to produce sleep
during severe attacks OF pain.
The testimony was quite vouminOus, but the
above gives the main points on which the contest
ants rely to sustain their case. The contestants
represented by Mr.. Fenton, who prepared very
strong case; and, after an exhaustive argument
before the Court, he claimed that as the will was
written and drawn by her legal adviser, and almost
entirely In his own favor, II rested with him to
show that all was correct; and that as there was
mass OF testimony on the other side which was not
by him, the natural az well as the legal
presumption was In favor Of the contestants. And
)n this he demanded trial by jury.
MI. McElroy who represented the legatees under
inc WILL strenuousy opposed sending the case to n
Jury, quoting numerous decisions TO maintain his
position, and argued that the contestant must
prove undue influence and fraud by positive evi-
1ence, and that the burden OF proof was on him.
suit was not brought by Mr. Mazurie but by another
party behnd him. and that the motives OF the lat
Yer party proceeded from feelings OF hatred towards
i"i. "uiiiou This was denied by the contestant In
10y, me court on saturday delivered an opinion
s'ai,nR the contestants view OF the law az ap-
r,ieu w ne lacts, and awarded the issue requested
~ '''s w" IVss W . Jury Tor determination.