The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-12-05

might begin almost Al the Commoaors's birth ex.
tend through his whole iifo How absurd that would
BIO, and. yet. there 10 no principle upon which that
TO any act down to tho time OF his birth.
Mr.. Clinton dwelt spon the Immense business man.
cumulatsd to distribute among his children. He
asked His Honor 70 remember that out OF ten children
nino asked 70 have the will probated
MT LoRD-Ohl that Is moi 70.
DISTINCTION vIrH pIrrERxscE
"At least they donr OBJECT" continued Mr.. Clinton,
'snd whom they don't OBJECT they stand In the post
position oil the contestants correct then the de-
ceased was insane when he acquired the $780, 900,
and could not have had title to It, Gould any
thing be moro absuid than for THAT woman" 10
come In and ask one-tenth of the property and
made his will by oxaminasion OF his and his
ntestines after his decease and years after the
claimed-nrs that while the other testimony had got
in under the circumstances no should state
that u was nadmssible and upon objection, unless
they began by showing Tho dissection Of the brain,
should have bcen ruled out then. Yet II was brought
in aud he did not move 10 strike II out without no
saw II inadmiss0le Tor the purpose OF forming
10 the witnesses; and, secopd, II II were admissible
for that purpose they had already got IN the cntro
testimony OF those who performed the autopsy
they had got in oil the facts TO which they would
DO entitled tho testimony wore admissible. so that
IL seemed to Mr. Clinton that counsel should now be
required prove insanity before goiug uto any
such Wild speculation as he proposed.
Mr. Lord said courts never limited counsel In regard
TO the direction OF their proof SURROGATE Calvin said
he understood the question before him TO be whsther
this the first witness called TO testify In that
respect, would the evidence be competent Mr. Lord
said that Sir. Clinton wrong asserting thar he
represented nine OF the ten children OF Commodore
Vanderbilt.
Mr. Ciintou-I didn't say that 1 said there was
only ono contestant before the court
Mr. Lord-rhe other nine have right 10 stand
back and sec what the result Will be.
Surrogate CRlviD-lf tins viii was made By person
OF unsound mind or under undue influence 1t Is quite
inmaterlal whether there 10 one contestant or ten.
Mr. Lord asserted that Mother in the opening
since had his side claimed that the Commodore was
generally insane. Mr. Lord MADE three points He
claimed, In the first place. that the Commodore
labored under q monomania IN regard TO the &C
cesson and TRANSMISSION OF property, aud that while
mentary power was obscured. The facts Ia regard to
this were yet TO be developed Next he claimed that
the deceased labored under ueusion which affected
his lestamentary competency and lastly That be was
acting under undue influence when no made his VIII
and that the instrument really not his own. Mr..
opening several weeks ago That physical pain might
drive q man mad illustrated by the alleged
To show that man might be sane upon some topics
and insane upon others Mr.. LORD cited tho case OF
an eminent Hebrew scholar Of this city who
at times does not know or recognize members OF
hts family, yet goes into the pulpit and advances
the soundest doctrines OF faith Mr. Comstock. IN
reply, said that II VIII was TO be contested on such
himsy ground the foodgates would be opened TO all
sorts OF litigation whenever man died who was pos
oil enough for his relatives 10 make fight over,
aud as to tue Commodore being afflicted with dis
eases that tended to insanity II perhaps might
be charged that all diseases tended toward That drec
ton. He put the question TO his Honor whether he
had heard OF that kind OF proof being brought
forward to invaldae Will in the absence OF any Of
those proofs Of manifestations Of unsound mind.
Surrogate Calvin-In other words, would any COM
petent counsel ask the court 70 refuse the probate Of
Will because the deceased was afflicted with diseases
which might possibly affect the mind2
Mr. Comsock sad, "Prccsely," and went on with
his argument in favor OF shutting out the proposed
hmm nd IN llaHu a n n
their testimony II they had any, IN connection with
which they said the testimony was to be used. Heal
was that CONCERNING the condition Of deceased
PROTEST AGAINST CHANGE OF BASH.
MT Lord protested against turning the current Of
paration had been made TO 60 on with the case upon
that basis, and particularly at time when hts asso
ciate, Judge Black, was absent unavoidaby. In con-
tradic,ion OF the statement that he had produced
only medical testimony he referred 10 the
statement ,h o. ss nrs w o. Aen 70 tue
bit declared mis- atner was certain TO DO controlled
by some woman, ana expressed his intention OF domi
bear upon the wooden head OF cane which he held
lightly his mouth like tit, and eyed
sn When he To
speak Of William H. he turned to the latter, who
behind him, and shaking at him several sheets OF
paper, which he held like n scroll, continued, s'rhat
declaration we have proved--iu tisputably proved
and here IL a conceded fact The that
this roillngin HIS millions meant to control HIM
In this regard"
Mr. Vanderbilt only showed that he felt this assault
by a heightened color and the contraction OF his
brows Mr. Lord continued by replying to the asssr-
ton that the world was being brought In 10 witness
tho Commodore's death BY referring TO the testl-
der great restriclions, his own children
were not permitted 10 see him. The Surrogate rc-
marked shat II the counsel could show cnronic
diseases at any time, which could be proved have
existed at the time the will was made, and which
might have affected tho Commodore's mind, the tes-
timony would be admissible. He stated, however,
that any testimony should be offered tending de-
rade The reputation arnsh the character OF the
Comm odore no would exclude it.
Mr. Clinton said that II q belief in clarvoyancy
Capacitated tho Commodore from making . viii IL
Mrs. La Bau from employing counsel to
Af.er further arguments by Messra Lord and Clin-
ton, traversne the ground already covered concern
Ing tho admlssiotv OF evidence, tho Surrogate took
\ recess until two O'Clock.
THE suRRoGArR's OPINION.
When the Court reconvened Surrogate Calvin
sad:-''The Court sntertains no doubt OF It's
authority and duty to control tho order OF proof
under the exercise OF wise discretion in further
ance OF justice and the orderly conduct Of trial. and
as the evidence which has been gwen and 10 now
offered, VIII depend Tor Its admssbillty upon proof
manifestations of mental weakness Oh unsoundncss
the testator PRIOR to and ut the time OF the
lion OF the instrument propounded as mis- viii, IT
would have been the duty OF the Court, upon tho
question bong raised to require the proof tending
snow such mental CONDITION to DO first given;
but while the failure to OBJECT on the
part oil proponents counsel did not estop them
from raising the question; yet, considering the err
OF ms case and the assurance OF the con-
les ants counsel that this line OF proof will be
exhausted, that they IN good faith, expect be
able 10 give the proof which will make that
already glven and such as IS now OIL
Tered competent, IL is probable that
the orderly conduct Of the woull more ais
Lurped by requiring a change Of the order OF proof
Already entered upon nearly mpieted. As to
the admssDility OF the testimony offered, II IS sum-
say that the real question ut issue IT, the
deceased OF sound AMI uisp0sn2 mind and
memory al the time when he executed the lnstru-
ments propoundcd as his last Will and codicil
thereto, sndit 10 well settled rule Of evidence that
The acsl evidence att enable should be required but
upon the assumption that the diseases revealed by
The autopsy may uuvc existed to SUCH sn extent TO
have probably affected the mental condition of the de-
ceased NJ the times when those Instruments
cutod, on proof OF acts showing mental ness
their existence VIII become material.
Upon the assurance that This line Of testimony is
n TO be extended, am inclined under the CIR sum-
stances to hold u admissible, and to decline direct
change OF tho order oil proof, subject however, to
renewal Of the application In case IT shall be un-
extended.
DR. Buck then allowed TO proceed with his testi
mony regarding tho autopsy Of Commodore Wander
bilL
MARsH's TESTIMONY.
Or. Seymour d. Marsh was next sworn. He had
treated Commodore Vanderbilt Tor his hernia and
had made truss Tor him wear: he
led that the Commodore suffered great mi from