The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-04-11
PROTECTING THE ORPHAN.

DECISION OF THE GENERAL TERM OF THE sU-
rREME COURT WHICH WILL REJOICE WIDOWS
AND oRPHANs-No COSTS TO BE ALLOWED TO
PARTIES DEFEATED IN WILL CONTEST.
The General Term OF the supreme Court, presided
over by Judge DAVIS seem be engaged In laudablc
endeavor to correct the various abuses OF the law
some Of which were referred to al length IN the
HERALD OF Sunday. The decision Of the General
Term unanimously rcbuking Judge Donohue for his
"unjustiaablc" illegal action IN hning debtor
the amount OF judgment and costs which had been oo
iaincd against him, for contempt In refusing 70 an
swer question, and committing him TO jail until he
should have paid this unprecedented fine, was
sadly needed warning 10 others OF our judges
While that decision was welcome protection
OF tho outraged rights OF personal liberty an
other IL equally important in guarding orphans and
widows from tho rapacity OF lawyers who are ready 10
contest Wills even when thoy have no genuine case,
and they defeated, feel sure OF getting at least
heavy counsel fees OF tho estate Judge Davis has
Just delivered an elaborate opinion. concurred In by
Judges Brady and Daniels deciding that the Surrogate
cannot allow to the defeated party in will con-
test
rHE DECISION
This decision Is meant TO break up practice, or,
rather. malpractice, which has been gong on for
years, and robbed many poor widow and helpless
orphan Of the best portion OF their inheritance for the
benefit Of some speculative lawyer In the present
instance tho amount OF costs involved is only $4,000
out Of estate OF about 500 000 but 1t Is the prin-
cipe which is OF importance and not the
accidental amount in any Tho present case arose
out OF the contest over the will Of Eliza Hearsey.
The Surrogate found against the contestants, tho
Chiidrens Aid Society and ST. Lukes Homo. but al
lowed their counsel, Messrs. d. r. Jaques and II. l.
Clinton $4,000 for ices and disbursements The exec
the will, which admitted TO probate, up
pealed the General Term from that part OF tho Sur
rogaes decision making the allowance. and the latter
has been reversed. SO that the lawyers IN ques
hon have 60 without their fees and not
mbursed for their actual expenses They have, how
sver, appealed from this decison nulling their
allowances the Court OF Appeals whose final adudi-
oil tho question WILL OF course, be looked forward
TO with unusual interest by the legal fraternity Alter
showing by numerous quotations from laws and prece.
dents that such allowances to defeated parties
contemplated BY the statute Judge Davis pro-
ceeds in his opinion as ioiows:-
JUDGE DAVIS OPINION
We think, therefore, that the Surrogate has no
power under the act OF 1870 to make allowances TO
parties who do not prevail cases con tested before
him. He may excuse such parties, II the be in
his judgment proper one, from the payment OF costs
personally but he cannot take the subject matter OF
the contest which he adudses 10 belong the
iul party and distribute IL or any part OF among his
defeated antagonists construction which permits
that be done is hostile the spirit Of laws,
which OF established tcstacy requires estates
to be divided according TO the will OF The testaor aud
cases OF intestacy according tho statute o ais
ributons IL Is also against public policy, Tor II
tually offers bride 10 reckless contestants and their
counsel ~ prevent the settlement OF estates by
promoting litigation and engcnderng STRIFE when
every interest OF tho public calls Tor their
abuses to the injury Of the WIDOWS and orphans and
tho creditors Of deceased persons whom all courts
should be sedulous 10 protect II would be hazard
experiment tor wealthy man to attempt to dis
pose oil his estate by his own will II could be dstrb
uted ut tho mere Will of the Surrogate among tho
counsel OF all who choose 10 set up whatever pre-
tence OF contest tho ingenuity Of avsrice devise.
We do BY these suggestions to indicate that
the will in this case was Improperly contested, but
The contrary think the contestants had probable
resist the probate OF the Will propoundcd
that their contest all respects fairly conducted
aud TOR that we have excused them from costs
IN all the appeals without considering the several
other Questions presented by the appeal somo ownich
are fatal 10 large portion OF the allowance, think
u our duty TO reverse the parts OF the order appealed
from, but without costs
THE HISTORY OF THE WILL.
The above decision Will revive tho interest attaching
TO the case out. OF which IL arose. and which is also
n Fac 81 20
street. died on February 9, 1875, leaving estate
valued at about 500, 900 Two wills were found
executed on July IL, lS74-only months before
her dcath--which Jeff her property 10 In Bos
ton, Miss Noyes, and tho family OF James Loverdge
who had lived with the old woman tor year previous
TO her death. Another and prior will. executed on
February 8, 1872, provided for Miss Noyos also
in the cold entirely. and icft large portion Of Ser
estate TO the Children's Aid Society and ST Luke's
Home The last named societies contested the will
through their counsel, Messrs. ID. K Jaques and L.
Clinton the ground OF undue influence exercised by
Miss Noyes and the Loverldge family. IL appeared on
the trial that latter leased the Charlton street
residence OF Mrs. Aearsey under agreement TO leave
for her exclusive occupation and TO pro-
vide her board lin lieu OF paying remit Mrs. Hearsey
suffered from variety OF Diseases feeble even
Eighty IN her mnd-so much SO that she sometimes
imagined she in her old King street residence
One OF the strongest points made by the contestants
Interested the second will, that no one knew Of
It's execution, not Mrs. Hearscy's nurse un-
I'll after her death. Mr.. Loverdge testified that the
will was drawn up by him In the basement upon In
structions received up stars IN her room from the
testatrx, but that no had torn the Instructions
Surrogate Hutchngs, extended opinion, admitted
the second will to probate the ground that neither
mental weakness nor undue influence had estab-
lishcd sufficiently TO reverse II. The General Term
confirmed this decision appeal but tho case has
been carried 10 the Court Of Appeals where 1t is
still pending.