, 1874-06-13
NUNCUPATIV,E WILLS.
Tho Cnse Of James Harrington and
0thors VS.. Mary 'S1ocs.
Opinion by Mr.. Justice MIC
Allister. =
Construction of the Words tHLast Sick
ness.v


i Special Correspondence ef The Chicago Tribune.
i MOUNT vEnsoa, June 8, 1874.
i Dy tho courtesy Of Il. a. .. Wilbanks, Clerk Of
the Sulromo Court for this Grand Division, i mn
cnnbled to forward the fulltext Of the opinion
OF tho Court (which !H unanimously h
THE NuScurArtyE WILL CASE
Of James narriugtQn at. al. v. ,Alary Steoa and
Robert boil, admniatrator of;tho estate Of II. II.
Harrington, .doooazcd, error to Edwards County,
lilo opinion ia by h1r. Juatico h1cAilistor. Itwas
filed today, and ie rs follows:
This was p bill in equity by tho noxt, Of kin Of
Henry Il. Harrington, deceased, to contest tho
validity ofa nunouratire will in favor Of AInry
steoa alleged to layo boen nlado by de-
.coasou in tho .time Of ,his Inst ,eioAness.
1t had been reduced to writing, and
together with tho attestiug onthB, presented to
tho Trobato Court, wlero 1t was admitted to pro-
bate, and lotters tostamentary issued to Robert
Bell who, with Mary Htoou, was matlo dofond-
.ant, and both filed auswora. Issuo hnying beon
formed, by agreement Of parties a jury was
waived, and the caHe heard by the Court on dep
ostion OF witneHses and certificates of oatls PRO-
,Hantel by the Probate Court. Tho Court below,
finding in favor Of the validity Of tho will, dis.
missed complainant'a bill, and they bring tho
case here by writ Of error. Tho bill Was framed
upon the theory that tho alleged will was not
.Mado III conformity with tho ]Aw,-that 1t waa
obtained by undue iniluonce and there was really
no intention on tho part Of tho dccoascd to mako
tho will set up.
| TIE DECEASED
was about 50 years of age,--a merchant doing
| bpsinoHs at tho City of Mount Carnel.-was
possessed Of personal estate worth from e1o,-
700 to SIG, 900; man Of good ordinary abilities
Il 1ths
and bad several children, all of whom, including
lis wife, had diol. l1o boarded, and made It
his homo, ut the house Of his mothor.iu.law, in
Mount Carmel.
MARY sTEEs,
to whom 1t is clamcd he ,gAve all his property. by
the alleged will, waB d sistor OF bis deccayel
wife, was woman about 9s years of ago, aud
!iveu IN her mothors family: Thoro was mar
steea. hls aistor-in-aw, aun both were mombors
Of tho Methodist Episcopal Church. Harring-
ton hat boon much out OF health for
aome 9'' three r months and haIe before
consumption. Aftor having been confined to
hia house for some two months, from this
t1aeaso ho 80 far improved aB to 10 ont mud Eo
to hls store, some two woeks before bis douth,
which occurred Noy u, 1862. But he was
taken worse, aud confined, mot only to tho house.
but to his bed. About 0 O'Clock Of the oyoniug
Of tho 1lth Of November, 1870, which WIS
"Wednesday, not being, under any special ,appro-
henslon a9n a1 o. approaching death, lie requested
THE REV. atn. nuanEY,
mr. h'dgoWay, aud a Mrs. Taylor sent for, In
order TINT .thoy might sing aud pray and lo
talk with them. Tho Roy. alr. Augley was a
Taylor . tnomher Of tho Methodist Church to
which tho deccascd aud Mary 6taes belonged,
About 10 O'clock tho parties aout for caino.
Iho religious oxorcisos contemplated wore had
1Nofft,fa ind tYrS7
HugAoy and Ridgowly lott tho room. These
iattor shut the door, which hqd uniformly beeu
Kept open except on occasions when sweeping
Was 1oue 10 tho adjoining room. It was now
about midnight, aud while there, as iB claimed,
TILE FOLLOWING WoADs
we're spoken md published, and they arc the
words reduced to writing and presented to tho
Pr0late Court:
~ II known TINT we. tho undersigned, wero present
al9!nt Carmel County q WaIas md stas of hi
remember T., what yon said 70 mo III thu after
1aqn It nesss sd to ss sx n M
TO Mr. Harrington that the thus waH PASSED iur Lay-
tg t 1iH torora1 matters Settled IN that way raning
l,s would better make will Tlen tue otlpr uf usW
Miiam D. ludgeway-sai4 10 AIR. Harrington tllat If
wanted to nuke Of lis property lat We could tssfy
to that fact ~ tho rroIa.e Court, aud that Ii would
ans aswes VET, xfll a. written WI 9ea sr larsing
arrangement w nude before was takon eick and we
wess prevented s from eona'nnattng BY my sick
should have everything haye, rea! aid personal.
aud tlat is my viii now" Mr. iiughvy thcn sa.ii
Just yes Ia ss sf VII 1 sFsnstSp
sr en pa:ad s n.
hlc-inaarace pocy-$5, ,0o0-iwant 90 to hrr With
out going through course Of administration"
Ihe toieRong arc the ouly words pronounced
~ ~ Tug aecoahcd, which Huglley aud nidgewny,
and presented to the Probate Courts and they |
are relled upon by counsel for dofontauta In er-
ror, as sufficient to establish tho will.
Wnen ~ is filed upder tho .etatuto, to con.
or writton, tue compliments aro not BOUND in /
tho first instance, to establish negatives; but tic
burden Of proot.ia upon tLs proponont Of tho Will
to establish it; which, especially iu tho case Off
required by the law. ''This Is requisite III con
sidorasion OF tho facilities with which frauds in
BaltlnBup Auneupatye wills nro obviously at
toMod,-f facilities which absolutely require TO be
countoracted ny courts insisting gu the stricteRt
proofs to tho fpcta' Of such Wills" Sir John
Nlclol in Lon,nn v. Donsall. 1 AldanB, G89.e
ON THE HEA1INH nELoW,
Whore tic bntueu of proof upon tho prQpo- |
nens, uughey was not oaIlod US. a witnosy;
1tllEeWhy waB. hut A0 docs mob bHtato tho dialogue
and wordH Of decoaBod, or the substance OF thom,
nB thoy wero reduced to writing by him anu
Hughoy, and presented to tho Prohato Court 1t
ls true tho certificate Of the oath Of llugloy and
Idsoway, made at the time Of tho probate, was
introducnd, which, by tho statute, Is nude evil
douco, a1d to have such weight, the statute says,
"as tic jury shall think it may deserve"
This oath, III we hAys Hoe1,, purported to set out
the Very words spoken by. tho deceased, and the
teaectiyo witnesses, anil tho fair implication il
Tint it gaye tho whole OF tllenl. TO ths extent
,iu Dr,9v oil 1
lonco; aud this seems to be conceded by tic
pounhel for defendants In error. 10 hold otlnr.