The New York herald., 1876-07-12
THE STEWART ESTATE.
The Surrogate Sustains the
Probate of the Will.
IMPORTANT DECISION.

| Surrogate Calvin rendered his decision yesterday In
the of the alleged heirs to the estate
OF A. T. Stewart upholdng tho probate OF the will and
adversely TO the claims OF tho contestants. The pro-
ceedngs Instituted upon order show cause
why tho pretended probate or the instrument pro-
pounded the last will md testament OF Alexander
Turney Stewart deceased as will OF real and personal
estate and the apparent decision thereon should
be adudged void revoked vacated and aside This
order based upon the petition OF James Bailey, in
his right, aud behalf of the other collateral
relatives of said Stewart named in the petition
The petition alleges that tho petitioner and
others named therein collateral relatives OF the
full blood and heirs at law and next Of kin the late
Alexander Turney Stewart, who died April TO- 1876;
that tho paper bearing date March 81 1873 purportng
TO be tho last will and testament OF said Stewart ap
pointing Henry Hilton and William Libbey executors
and Corneiia N. Stewnrt executrix thereof, and the
codicis thereto, dated March 81, 1873, and tho
other March IS OF the same year, in tho evening
OF April 49, 1876 presented to the Surrogate for pro-
baic; that the l4th OF the same month letters
testamcntary wcro ssuoI, and said will and codicils
were recorded in the Surroaate's Office duly proved
That no citation o. notice to appear ISSUED or d.
rcc,ed to be served upon the petitioner any OF the
heirs at law next Of kin, required by law, nor
State; that opportunity afforded petitioner
any of said heirs &c, to require all the witnesses
said will, &c, to DO summoned to request other
witnesses to be examined TO be present at contest
the proof of said will that the probate and record
thereof not made public at tho surrogac's court
ofhco, but privately, in unusual haste, on the
day Of tho funeral of said Stewart without notice to
petitioner said heirs; that said papers tho
last will and testament and codlcs OF said Stewart
that thcy obtained and the execution thereof by
said Stewart was procured by circumvcnton and un-
duo influence practised upon him by Henry Hilton
some other person unknown to the petitioner; that
petitioner and others OF said hors contest tho probate
Of said will.
On the return day the widow, Cornelia N. Stewart,
filed her answer the petitioner, which sets forth sub
stantialy her marriage TO the testator tho 1871 Of
October. 1929 and that she lived with him as his wife
in the city OF New York until his deccase, April 10,
1875: that shc has no knowledge or information
sufficient to form a belief whether the petitioner
the persons named collateral relatives Of her
said husband, and therefore denies tho samc. That
tho application for the probate of the will and the
proofs thereof wcro publicly and openly made
Henry Hilton also fled affidavit setting forth that
hs know deceased intimately twenty years ha.
he drew the will and codlcs under the direction of tho
testaor who in the full vigor of his intellect and
such directions given that he did not influence
attempt influence the testator and does not know
any person doing that he had frequently heard
him that he did not know OF the existence OF any
booc relatives, ms Ind been generally stated in the
newspapers this country and in Europe; that no had
been frequent guest at his table, and had
any person whom he recognized as blood relative.
william Libbey tho other executor, filed his affidavit
stating acquaintance with tho deceased for upward
OF seventeen years. Hc was general manager OF the
wholesale business, and in July 1867, became part
ner of the firm Of A. T. Stewart Co., and continued
as such his death; that their intercourse
stanI and that SO far as II possible for man
said Stewart actually and personally controlled his
said business until within a few days of mis- death.
This practice was alter March, 1873 before
That from his knowledge OF the deceased no undue in
fuence could control him IN making hts will or in do
ing any other act In reference to his property that no
had never heard or known OF any claiming to be
blood relative Of his, or that he acknowledged any
SUCH but generally understood that he had mono,
and deponent so believed.
Afcr the answers AMI affdavts wero fed in oppos-
tion to petition counsel for the petitioner offered
give evidence Of the facts set forth In the petition by
production Of witnesses; but the motion 10 dismiss
all the papers caboratclv argued on both sides
and submitted for tho purpose Of dccvion.
Counsel for the executors and executrix In their
gumcnt OF this have discussed with great cure
the force and eject OF tie facts forth In tho
respective and udavs presented In their be.
half urged tho mprobabty OF tho alleged undue
influence upon the testator by Mr. Hilton ana by Others
unknown, but 10 Is clear to my mind that this motion
TO dismiss must be considered upon the assumption
that the allegations contained in the petition true,
and benefit be derived 10 tho parties making tho
notion from the iacts alleged by them, Tor the motion
based upon the alleged absence reasonable ground
SGT forth in tho petition tor The opening ana vacatng
of no nm | ar be rdcd
they must be accepted as forming issues OF fact for the
purpose Of pfesen,ins m, p,oo,s 10 ",s establish
entl 10 the opportunity 10 prove the allegations set
forth in their petition with leave the part OF the
truth Of their avermens Tho petition, after alleging
that the petitioner and others collateral relatives OF
the tesator, states that the will and codicls
presented to the Surrogate the 18Th day OF April,
1876 and application made for their admission to pro-
bate and record and that letters tcstamentary
issued The next day and the said will and codciis
recorded sa,d Office duly proved without citation
to the petitioner or the othc alleged 70 be heirs
law next OF KIN, required by chapter 400 OF the
Laws OF 1887 and without citation upon the Attorney
General OF tho State that thereby the
deprived Of the opportunity To require all the
to said will to be produced and examined or TO require
other witnesses TO be oxamncd according TO the act OF
1S41, chapter 100
Il appears by the petition Of the widow duly veri-
ned by her on the 18Th day OF April, 1870 and on
which the petitioner moves and which presented
tho Surrogate praying for probate OF said Will and
codicils that 1.-The widow, only heir" and next oi KIN Of
SAID deceased, the petoncr; :nat said deceased
Lett him surviving mother father mother brother
sister or descendants OF any or either OF hem, or any
descendants OF his or any relative or next OF kin OF
said deceased On this proof aud the faith OF the
allegations contsned in sad petition tho proceedings
OF probate were taken and upon tho assumption Of
their truth II 10 cntircly that there
OF issuing citations TO persons thus clearly proved not
10 exist Tho third subdivision Of section OF chap.
Ter 400 OF tho Laws Of 1881 provides that II the
will relate TO both real aud personal estate
the namcs, places Of residence OF the heirs
widow and next OF kin OF the tcstator shall be
asccraned by the surrogate, by satisfactory evidence
and section provides that the Surrogate shall there
upon issue citation requiring the proper persons
appear and attend the probate OF the Will. and pre-