, 1873-02-14

1
allow the will Of 1871 to be admitted to probate
70 this course no objection seemed to be made
! Ine counsel For contestants appears. therefore
to have assumed that no further testimony was
necessary On his side, and the matter Was in this
somewhat anomalous condition, and without
| argument by the learned counsel, left to the
! Court to determine. In every case q testator is
presumed to be sane. To this presumption is
usually snperadded the testimony Of subscribing
that they considered the testator to be Of sound sound
and disposing mind and memory. Here the sub
ecribing witnesses testified to compliance with
the usual formalities by a person whom they
| considered
OF SOUND AND D1spos1Sa MIND
| and memory. Thereupon, and without any re-
I gard TO any facts and circumstances occurring at
any other time or place than the ecene Of the
| execution, the proponent was held to hive
made ont prin1u facie case, and the burden OF
proof was thrown upon the contestants to estab-
lish the fact it they could, that some or more OF
these formalities had not been complied with,
| or that the testator was incapable OF making
sought to aseail it's validity on the latter ground
It IS perhaps unnecessary to detail with any de-
gree Of minuteness the testimony which the con-
| testants adduced with
| 4 VIEW TO ESTABLISHING 1NsAS1TY
Suffice it to say that the intimate associates Of
| the decedent observed, at least as early as the
LIST OF November, 1872; in his acts, appearance,
and conversation, indications Of alteration Of
condition continued down to the 9th day Of No
| yember, the day Of the date Of the will in con-
| troversy, on which day his conduct and language
| were OF 80 marked and unusual character Us to
leave no doubt Of his insanity. The painful his
tory from this period down to about the Goth of
November, when ho WAS removed by his friends
| to the private asylum OF DR.. Choate, near
Pleasantvile, is furnished by the testimony, and
there it ceases From that date to few hours
previously to his death, on the 29th Of Noyem-
ber, We have no direct evidence as to his bodily
or mental condition. Upon this evidence, il
connection With the peculiar provisions OF the
vii IL the light of tue fact as alleged, that
contrast between it and other wills therefore
| made by him, and the further fact that in it he
nomlnates no executor, when in 1871 he had
urged upon his friend A ]. johnson as the chief
reason why he should make will that he could
thus appoint his oTn executor, would seem to
be the grounds upon which the contestants
counsel relics
As ESTABLISHING 1Es7AMEsTARY rscAPAc1Ty.
and so far as overcoming the testimony Of the
subscribing witness as to again cast the onus
probandt upon the prepayment In this am in
clined to -elieve he is right. To say the most OF
It, the evidence OF the subscribing witness is
aiaoE the precedent facts. Here was person
who had manifested such palpable indications OF
unsettled reason rs to cause his most cherished
and intimate friends the lyeliest anxiety, who
was, by their advice and under their direction,
DOUBTLESS REMOVED TO TEE PRIVATE ASYLUM
Of an eminent physician, who made the treat
ment Of the diseases Of the brain 3 specially,
and who remained under bis treatment until the
tacturn Of the alleged will, and, indeed, during
that day, no word was uttered by the dying man
other than the monysillAbles "Well, +" 'efes, and
.sNo" In response to questions put to him. When
testament, he, i would seem, with his eyes
1 Being !epsated @ u dSerens % a' tof@ aas''5e 5e
gS h his 'S5at asSa 5se8 Tbah his i
by Mr. Stuart it he would have him, who was
one OF his most intimate friends, as one OF the |
witnesses, he said "No," At which Mr. Stuart |
vas so evidently astonished that he repeated the
twill you aAvE NE, JOHN R. STUART,
witness it =" and the response Was again No"
attach very slight Importance to the incident /
these circumstances may be consistent with the |
soundness Of 3 mind-the1efore sane. They |
certainly it srikes me-, are not inconsistent with
the continued unsoundness, whore it has been |
once clearly established The onns was upon I
the proponent to remove any doubts upon the |
subject, we're 1t practicable to do 80.
The above scene, as the evidence shows, oc- |
CURED shout an hour before the dissolution of |
this will was written, or as to the attendant cir
cumatances, or as to where it was found, or that |
the decedent had any agency whatever in it's
production for formal execution, and am not
TO HAyE THE BENEFIT OF
the evidence Of DR.. Choate, the professional e1-
pert, under whose care and in whose house the
patient was for nine days Immediately prior 10 /
his death, and Who Wac In the house at the time
Of the so-called execution Of the alleged will.
Under the peculiar facts Of the case, had the
parties all been OF age, the intendment would in
have been strongly against the pro
ponent- On the other hand, because there is an
infant party, principles OF law cannot be relaxed,
nor unwar1snted inferences from evidence be
made in her favor. In these respects the Law
knows no distinction Of sex or age. Soundneas
and perfectness Of mind are held in law to be
ABSOLUTELY REQUISITE IN TEE MAKING OF WILLS.
the health OF the body merely not being regard
ed. # general insanity be proved, it ia presumed
to continue until = recovery bo shown; and the
party alleging restoration to sanity must prove
bis allegation. (Grobel us. Barr, Barr, 441).
With respect to persons Of unsound mind having
lucid intervals, it is sufficient il the evidence ad-
duced in support OF the will shall establish
that the party afflicted had intermissions, aud
that there
WAS AN 1N1Ennss1os AT TIE TIME
If the act; but the order Of the proof and pre-
sumption is thereby inverted, for where insanity
8 established, then the party who would take
Of the act, and during an interval Of
:eason, must prove such act to haze been 90
P.) In this instance re have the general insan-
,foof that at the time Of the factuua there Was |
N interval Of reason. Applying the above prin- /
iples to this state Of facts, it follows that the
ill OF 1872 must be refused probate. The will |
It 1871 having been duly proven, must therefore
'e admitted AZ the last will and testament OF |
Horace Greeley.
EVANSTON MATTERS.
Tho Hon. William Parsons, IL. P, Of Great {
|rltaln, will lecture in Lyons Hall, under the
uspicea Of the Pioneer Fire Company, on satur-
ay evening. The lecture Of Mr. Parsons on ,,
Michael Angelo" has been pronounced BY those :
no heard it as the finest lecture Of the season, {
I'D selfish considerations ought to bring .
:owded house to hear him On "George Stephen !
on." /;
Mrs. Livermoro will inform tho people OF Ev- :
1ston and vicinity, who will take trouble to go =
the Methodist church this evening, what she +
1owB about "Our Girls" The Ladies' College :
1spiciates the affair. i