The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-06-16

Besides, the deoedent wea not man
OF weak MIND, but OF one OF the strongest and
perhaps most determined minds ever possessed
by any individual. TO talk OF Il man who came
here poor aud young and who within less than
nfty yeafn had accumulated a fortune larger
than tt>t Of any merchant In the world, and
who cJntinued that vast business which no six
men On the face OF the earth had mind and
capacity TO continue--to talk about such man
being undue Influenced was sheer nonsense.
And unduiy Influenced for what To defraud
relatives Of whose existence he was ignorant,
and OF whose existence his family were iRno.
rantl That very proposition showed the utter
impoesibilitv OF any good ever resulting to tho
petitioner from this application. hut there
were other considerations In regard to prop
erty. Was II right that one OF the greatest
stores In the world should have its business
clouded2 Was that fe,lng OF insecurity to 20
abroad In the community that person Who bad
not known the family OF a decedent for 1fty
yeSrs or more, on mere assertion that he was
relation, could come into court and force the
executors Into litgation7 That was case
which should be met at the thre. hold. Inas-
much az great damages would follow TO one
side and no conceivable benont to the other,
aud a. the other side had had two weeks to pre-
sent the facts to sustain their application, and
had not put In aflidavts to contradict
mtsed IN view M Of ali these facts s wa.
clear upon the papers before his Honor that the
application should be dismissed.
MR.. ROOTS ARGUMENT.
Mr. Root followed in an able argument, In
which he supported his points hy many authorl-
ties. lie said tnat the question before his Honor
WAS not whether the paper In dispute was the
will Of A. 7. stewart 1t was ~ TO whether the
petitioner had right to be heard upon the va
lidity Of that instrument He was depriyed Of
that light. as they were told by virtue OF an
adjudication upon PAPER ALLEGED TO be a
viii. An adjudication in what proceed
inef When and where was TINT adjudication
hadr The petitioners were no parties to IL;
they bad no notice oft. II was card nal prn-
cipls In the administration Of justice that no
man should be Invested OF his rights without
beng called into court and having AN opportu-
nifty to he heard. The petitioners came Into
court upon plain aud simple statement OF
facts, alleging that they were heirs at law Of A.
I. Stewart which allegation they held them
No notice or citation was ever served upon
them and no opportunity was given
proceeding In open court, so TINT even the OPP
pOrtunity, which common rumor might have
given them TO come and he heard against this
Investment Of their rights, was not given. There
was no time given for rumor to be set ahOat
even by the Industrious collectors OF news, the
reporters. who inform the punlc OF important
transactions. Ii was a proceeding within the
closed walls OF private house. IL was had IN
was laid IN ms tomb. TIE persons interested 10
having that pager established as a will did not
walt until the sun had risen once UPON
his grave, but without notice, without
trial, without appearing in open court, they
mace tue ex parte, Informal, and Irregular So
called proof upon which the paper now stands
The petitioners further claim not merely the
general right which every man mad to he he I'd
upon an adjudication as TO his property, but
they alleged the violation OF spec inc statutory
provision which had been guaranteed To them,
and which existed upon the statnte books.
Mr.. Root continued to comment somewhat
severely upon the manner In which tue alleged
probate was obtained.
The Surrogate said he (Mr. Root SCENE ed to be
losing his argument upon tue assumption that
there had been neglect In the performance of
an official duty, which the facts did not war; mt.
Mr.. Root disclalmed having any such inten-
tlou, aud concluded his argument by saying that
tine application was not addressed to the discre-
tiOn Of the Court, but was demanded as a right.
MR.. W. o. BARrLErI's ARGUMENT
II your Honor please. will add only few
words to the clear presentation OF our case made
by my learned associate (Mr. Root. You took
occasion to interrupt bin in reference to the re
marks which lie was Offering upon the circum-
stances under which this alleged Will WAS ad-
miited to uro1ate. with perhaps some degree Of
| seusitiveness both nttural and unsuitable.
wish to say very distinctly in reference to that,
| that we have never at any moment had the
slightest msgiviug as to the mi ention OF your
Honor faithfully and fully to perform your ju-
dicial duty and We know full well-tor Il IL at
| tested by long series Ofprotessional triumphs-
how great and extraordinary ure the persuasiN G
power OF the senior counsel on the other side.
not only over judges sIogly but collectively ON
the bench. NeknOw that there could We been
nothing hut proper motive Ia the breast OF
your Honor.
Bur let us revert to that scene Let us see
what your position would have been II the
truth, as It exists in the knowledge OF God and
as Il now Couct ded Tor the purposes OF this aigu-
mett by our opponents, had been known 10 yol,r
Honor. The law would nave pataly zed the hand
with wuich YOU wrote the ADMISSION uf that will
| 10 probate. Under tnose circum -tanc.s IL would
have Ueen Il voiu act. because the law never con
| ferroc upon surrogate The power to admit to
PROBATE aw III Of real estate without citation to
the heirs al law. Not knowing OF the ex stence
OF thuso heirs fully relieving that no such heirs
| existed, YOU performed what you then consld-
sred yodr duty cOnsctentiuu-ly. How were You
! Leu 10 tho admission OF thd. will 10 probate ,
| by The anidayi of Mrs. stewart. as we under
81 ma, and ~ have understood your Honor to
intlua when You interrupted my learned asso-
ci TO- Now, II your Honor please, lot mo call
NOlr attention To- what Appeals Ia the affidavit
OF that Lady, put ia on the other side here ia this
proceeding:
The said Caroline ~ Stewart Ia, 10 kpoEcdge or IN
ioTiaatio snh .sn! TO form belief whether Tue sad
elause OF std petition are any or eer Of them rtla
neirs At law or next OF KIN
Not knowledge enough to form belief! And
yet u WIS she VINO made trat positive affidavit (!
make 10 reflection upon the cnara'ter Of that
estimatle lady. do not believe that she could
nave known what she swore 10. Charity COM
pes us all to come to that conclusion. She
swers now that she has not sufci mt kruWl l.
edge to torn belief. Your Honor was misl,d,
or your act would have been Illegal. IL fact, in
point Of law there existed then at tn Il Time a.
though YOU were deceived In reference to IL, a
right IN Mr.. James Bailey TO be citei TO ne pro-
bate OF that Will. Now, your Honor Ia, lust
stated IN terse aud forcibie language what is the
effect II sGch a proceeding. Your words, a.
wrote them down. were Where parties emil
tied 20 come i'm are not heard, the Court sc-
qulros no Jurisdiction over them or their
nights. You have aujudieated upon the rights
OF our client here. He had f'ght To he heard.
lie had flgbt TO come into court, aud he was
not heard, aud you had no jurisdiction. You
was that he was entitled to he heard and under
those circumstances you had no jurisdictiO n
Your act was, therefore, a. void rs though IL
had never been performed; for II there is an
elementary principle of law thoroughly well
settled, II is that the acts OF Court having no
jurisdiction are NOT merely voidaOle, but aoso-
lutely void. Therefore we say tueIe mas been
no probate Of this instrument.
nNOW IN regard TO the point which your Honor
made as to the effect Of d decree which Is de
CT red void and vacated, as to what purpose IL
stands, We suppose thar IL has all the value Of a
void de rec Whatever thtt may ne, and no more.
NV learned associate has anticipated me ia
replying TO some Of the reu arhs Of Mr.. Clinton,
aud they stfuck me, AS they struck him, as m Ost
extraordinary reasons TO be urged IN a court OF
justlce-tnut the forms Of law and the require
meHLs OF the statutes should not he Combned
with IN his case. HIS argument was that this for
tune had already become So vast that II should
be permlttel TO roll on, even though 1t went
beyond the bounds OF law, and crushed
the rights OF humble individuals. | hope
that my learned friend who Is SO able and
eloquent, not only in mis- arguments at
tue bar, but In popular addresses, will
some time address the people, advocating
this political doctrine in this democratic
community-I use the word democratic in LIS
classical and not in Its pirtlsan sense. 1t vii!
be new thing for the American people be
told that fortunes wueu they are sufficiently
large, have rights tnat people do not possess.
IL Will be somewhat similar to the weil-knONn
old decision that cOlOred men lad no rights
which white men were bound to respect. Ho
tells us that another reason why this probate