New-York tribune., 1874-07-04

wishes by obscure, tnaricnlae eounds known only
at ALL by the widow. who so largely interested in the
result shall not consider at length the question Of
whether the decedent the time of the execution
OF the papers. imbecIle
The Surrogate then shows by the testimony OF several
witnesses that the decedent did not speak the
ordinary occasions, and that Mrs. Rollwagen he
widow gave all the necessary directions, even for I'M
provements Of property. But the Surrogate puts the
greatest testimony OF Henry Hermann. on
his sexaminaton, which be thought very important
IN confirmation Of the view that the decedent had not
the capacity about the period Of the execution OF these
papers, perform any acts OF business The fact that
feur business checks amounting 10 about $1,000 were
issued aud paid az the bank with the Sgna.ure b,
R0lwagen," having been written ny the Wlie' Mnicn M
fact is admitted BY, W Henry sa@s hand nav
have Pwritfen the eignature to the will and
codicl; for the hand which signed those checks
without authority tuness the testimony OF Henry
Hermann TO credited the pOini), was the hand
OF person who the principal beneficiary under the
signed on June II. and the deed transferring the old
house In Nluth ST. TO OIL was signed on June "a Ine
was signed on April II. On all these occasions. Mrs
ROwagen held he hand OF che decedent when MS name
sgned testified 10 by Oh and 5aekett respec-
lively
the esmony ne, there is no proof OF any signature
having written by the decedent 10 any paper,
except the will and eodic unasslsted anu very
presumption necessarily that ne dd not write MS
to either instrument unassisted The testimony s
use pen by the decedent, and especially 80 when
considered connection with the undOuOted fact that
during year Of his life the decedent IS not shown
TO have signed his to single paper, except the
will and cUdlcll unasssted and that within TOUR days
after the alleged signing OF the WILL decedent was
unable sign contract with Schwartz the builder
The Surrogate therefore says In view OF tDe physical
inability OF the ecedent sign name established
proofs witnesses, and OF the fact tnat
either his hand guided by his wife. or else that
Henry Hermann actually signed the deeedents name
under alleged verbal authority am compelled 10 come
the conclusion that the testimony or an actual sub
scrptOn Of the will aud cOdlcl BY the decedent himself
very unsatisfactory.
cannot resist the conclusion, from all the crcum
stances proven in the that the motive or feeling
which prompted the widows devotion TO him did not
arise either from passion the sentiment of Affection
and that its explanation may be very reasonably sought
for in selfinerest ana design, which, IN the weakness
the testator. rendered him easy subject TO the per
sOnal Will aud wishes OF herself and brother.
Tue very cebleness OF the decedent would render him
liable TO be easily brought under undue influence, and
the Surrogate thought the present presented the
Instances OF undue influence" After prevent
ing the SONS and grandchildren from holding friendly
intercourse with their relative; after securing 10 herself
position of mistress OF the Ro wagen household,
rising from mere empoye at monthly wages, not con-
tent that her future independence was assured during
hs e and her duwer after his deain, secured TO her
large annual income she changed the whole condition
OF domestic affairs. Tie house IN which she was con-
tented TO act empOye would not suit her
as wife, and resulted In It's SAFE ana
the purchase OF superior dwelling. In
April Is73 Wuen the deceased the helpless con-
duOu already described, his Old agent, Mr. Beers, was
discharged ana Henry Hermann, the brother OF Mrs.
ROlwagen, pat IN his place. This only about
two months before the execution Of the alleged will
George The youngest OF the decedent, having gone
California. the only residents OF this house were the
decedent his wife, her brother Henry, her mother and
a domestic OF whom the mother OF Mrs RJlWagen vas
godmOtAer None OF those related to the de-
cedent Uy ties Of blood were there. The family
OF the Herrmanns had" tile Surrogate says, by
tns time, become The controllers OF the Rollwagen
household, and Herrmauns were 10 the Rollwageus
JamHtd IN timtid Considering me pr0srate' feeble
pardy zed condition OF the deceden aud his speech
lessuess, winch, upon the whoe o. the testimony, am
bound TO believe, he was inevitably subject TO the IN
iIence OF those who had established themselves as a
family within his household. II he was not the victim
OF influence, the creature or their VIII, and the
plant Of their plans, they must considering
ne Tenor OF the provisions Oh the WILL take the response
biity They must rest under the natural suspicion which
upon them rom the facts and II the PROVISIONS
contained the two papers expressed the real wishes Of
the decedent IL Is most unfortunate that he proponents
were not provided with testimony 10 that effect The
widow not called witness in the case, ana 1t
would not nave been competent Tor her 10 TESTIFY 10 any
transaction or communication between herself ana her
husband.
The Surrogate after further reviewing the case said
that constrained 90 believe that the pape pro-
pounded are, IN effect, the production OF Magdalena
rban tnat of the testator The lawyer who prepared
bOtn Jrumeuts not he vino for very many years
hainer) and who had drawn two wills for nm-one in
1854 and another IN lS69-lnd who had had interviews
with him years 1870 1871. and 1872, profess
sional character That gentleman states tIat during
stated by the deceden tnat the only means ne had
OF udqng the desires OF his client were the state
ments made by Als Wle Oi WldJ sue assuleu lhe ut-
Henry Hermann, who was also personally interested,
selected lawyer who prepared the instruments. ana
Mrs Rlllwagcn gave the instructions for change OF
the provisions OF the viii drawn Oy kOsehsteln Inc
aIesng Witnesses were also OF their selection nor was
auy of RUlwagens consulted in the matter. Mrs.
kolwagen pald lawyer for his professional services
After considering all the facts presented IN the cse the
Surrogate CLOSES his opinion with the following words
Ia conclusion, deem 10 plainly my duty, upon the
evidence decide that the ue execution or either the
will or cOilcl Is not sufficiently proved; and, even
assuming that the decedent mad testamentary
capacity, that the requirements or law respect
ing the forms Of execution are SHOWN 70 nave peeu
complied with. yet the evidence cOnvinces NE mat
neither OF papers In question truly expresses
the decedeus real purposes or intentions IN the dspOs
tiOn OF his property, auQ that ne dd nee uy cOmpre
Lend their provisions and further 10 decide that the
proofs Clearly establish that both instrumentS-ind
such execution thereof is shOwn-were the result OF
undue influence and other unlawful MEANS rendering
the same void therefore, that both will and codicil
should be rejected entitled u admission to pro-
bate.