, 1876-06-18

| The Contestants In the SuTrogate'S Court
Atldavlts of Mrs. Stewart and Judge ELL
He1c FORK Ezpress June Is.
The application to yacatc the probate OF th
! will OF the late 4. T. Stewart came up for argu
ment before Surrogate Calvin in his court te
day; ,,u,, ,-.......-,
counsel for James Bailey and brothers and sis
tiers, and for the Turney family, on whose NJ
| plication tile order to show cause why the pro
| bate should not be vacated was granted BY ths
Surrogate. Ex,Judge Henry +. Davies, Heur,
Clinton appeared Is counsel for Mrs. Stewart
and Judge Hilton.
ExJuige Davies said he appeared for Mrs
! Stewart, aud he asked, Us far as the personal
estate left by Mr. Stewart was concerned, that
the revocation OF the probate be denied. The
probate Of tho will was regularly done and the
papers on file III this Office The petition ot
james Bailey and others did not show that the
probate was not legal. He would confne hia
motion entirely to the question Of setting aside
estate- The order was to show cause why tie
probate OF the will should not be set aside as
will OF personal estate, and also "a . will OF
real ESTATE He would eonfne himself to the
clause OF the order In regard 10 setting
aside the probate of tle Will rs will q
personal estate, and be contendcd that the
petitioners, US far US personal property wos con-
cerned, had no standing In the court He argued
this point at some length, when one Of the OPP
posing counsel said, Us far as personal estate
was concerned, he would not oppose his Off.
DaviesD motion. granting that Mrs. Stewart be-
came fully possessed OF all personal estate left
By her husband.
ExJudge Davies then asked that the Surzo-
gata issue an order dismissing the petition for
the revocation Of the will as far as personal cs-
tate was concerned
Mr. Root, Of the opposing counsel, asked that
the order do not be granted until the application
for the revocation Of the probate Of the will rs
will as rcAl estate be heard
Ex-)udge Davies wanted the order then signed
and issued by the Surrogate.
Surrogate Calvin said hc would enter on his
minutes that that part OF the proceeding
relating to personal estate ha1 bcen dis
missed, but hc would not sign and issue Ills or
der until the other Iurt of the application rela-
tive to the will us will Of real estate had been
heard. He would give time to counsel for the
petitioners to examine the terms of the order
before he sigucd It.
Air. Henry II. Anderson then moved that
the application for the vacation nf the probate
OF the will as will Of real estate be dismissed,
and proceeded to argue his motion
and support bis argument by, citation
Of authorities. and quotations. OF law: He
Court at the present stugc. There was no allie
gation that MIR. Stewart was not capable Ut
making will. The only allegations were that
the will admitted to probate was not the last
WILL OIL lT. GLEHaItY 0Q4 LuaL Luc Cou1ClS W tuE.
will were procured BY undue influence, practiccl
upon Mr. Stewart BY Henry Hilton or some
other person unknown to the petitioners On
these points the burden of proof rests on the
petitioners, and until they produce proof vi the
truth Of these allegations they have no standing
in court
Mr. Beach said they were entitled to dis
mfssal on the merits Of the application to have
the probate vacated.
After some discussion Us to sending the mat
ter to, referee, Mr. Anderson read an answer
Of Mrs. Stewart to the petition Of the Baleys, In
which she stated that she was married to Alex
andcr Turney Stewart. in the city Of New York,
In October, 1928, and continued to live with him
as his wife until his death, that during all that
time she never heard Slr. Stewart stnte that be
had any blood relations, heirs-at~law, or col
lateral relatives, and ehe consequently
believed and averrcd on information
and belief that slr4Stewart at his death left
no such relatives or heirs-at-law; that the will
acts Of Mr- Stewart; that the business Of Mr..
Stewart was Of such nature that no cessation
OF tt could be allowed, and, therefore, as the
Surrogate could not attend in his Court the
day after Mr.. Stewards funeral, hc (the Surro-
gate) did attend at her residence On the evening
OF the funeral, when the will and codlcils were
produced, and the executors and 1egatces hav-
Ing been duly notified; the necessary proofs
were produced, and the will and codicfls ad-
mitted to probatci that the provisions Of the
will and coditils have been complied With.
Mr.. Anderson also read an affidavit OF Mr..
Henry Hilton, who stated he had known the
late 4. T. Stewart for twenty years that he
had had close business transactions with him
during that time, and had frequently been at
his house and sat Mt his table; that be had
frequently heard Ar. Stewart state that he bad