Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1878-04-19

e. 5. PALMER, States Attorney.
A. ]. Howard. Clerk.
l.. A. BREW, Sheriff.
FaIDAY. April IL.
The testimony in the Mech will case
concluded at three O'Clock. Yesterday alter
| afternoon. The argument in the case
was opened by Hon. Daniel Roberts on be-
half OF the proponents. The trial will
| occupy the remainder of the woek.
SATURDAY, April II.
The entire day, yesterday, was taken up
with the concluding arguments of counsel
in the Mech will case. They have all been
unusually tull and able. worthy of the best
efforts OF the speakers. Mr.. Roberts, OPEN
ing argument in behalf Of the proponents of
the will was conclude On Thursday even
ing. Messrs. l.. l.. Lawrence and Henry
Ballard, the counsel for the contestants
closed their presentation of the case at $3.50.
yesterday afternoon. Mr.. Billiard having
spoken over four hours
Mr.. Phelps argument, in behalf Of the
proponents Of the Mech will, was con-
cluded at noon, when the court took re-
cess until Monday afternoon at two O'Clock,
when the charge to the jury will be given
by the court
TUESDAY, April Is.
The court resumed its session at two
o'clock yesterday afternoon, at which hour
His Honor Judge Pierpoint commenced his
charge to the Jury in the Mech will case.
THE JUDGES CHARGE.
This case comes to this court by appeal
from the decision of the Probate Court, ad-
hitting to probate the will of the late Mrs.
Lydia Mech. IL is contended on the part
OF some Of the heirs first, that the will was
not duly executed second. ttat it was
L.. L.. "A A. -
that at the time OF making the will the
testatrix had not sufficient mental capacity
to make will. On the first point the
Judge held that there was no ques-
ton but that the will was proper
" executed. On the second point the
court had heretofore decided that there
was no evidence Of undue influence, and
now reiterated that decision snd renewed
the instruction to he jury to lay that point
out OF the case. The third point was con-
sidered at length by The Judge. taking tho
same positions as he held in his charge to
the jury on the former trial. Mrs. Mech
had the right to make a will and dispose Of
her property as she chose. Had she the ca
pacity, at the time this will was made. to
make a will intelligently? The law of this
State, on the question of capacity, was laid
down by the Supreme Court in the case Of
Converse vs.. Converse; In that case the
will Of the testator, a man of 70 years,
who had had softening OF the brain,
was sustained BY the Court. Excep-
tions were taken to the decision on
the ground that the Court should have
ruled that it took as mucn mental capacity
to make will as to do other important
business. The court rea thrmud its decision,
Judge Bennett delivering the opinion and
saying that il required less mental capacity
"a ma ra n all Nka ...$I
OF sale of property, in which there is a con-
hict of interests between the buyer and sell
Ter. The testator must have mind enough
to retain the clements of the business to be |
transacted-must know what he wished to
devise and to whom he wished to give it,
and be able to form an intelligent Judgment. |
That is the law. In applying it to the |
present case, the Judge discussed the effect |
of old age on the mind and reviewed the |
testimony as to Mrs. Meech's mental condi- |
ton. Ii she talked AMI acted a. the wit
nesses to the execution of the will testified /
that she did, it was strong evidence that she |
was competent to maks a will, and that she
did it understandingly. Judge Pierpoint
considered the provisions of the will, as
throwing light on the mental condition of /
the testatrix, aid found nothing in them in
dlcatlng mental lncapaelty. Ia closing, the |
Judge said that the burden lay ON the pro-
pononts to satisfy the jury that this was the
will Of Mrs. Mech, and that she was OF
sound disposing mind, when it was made.
The trial of the case of Samuel W.
Thayer vs.. City Of Burlington was
then commenced. This is An action on the
case brought by the plaintiff the we'll
known physician of this city, Tor damages
which he claims to have resulted to him BY
reason Of the pollution of the stream which
passes through MS premises on the south
westerly corner OF Maple and Church streets
by the emptYing into the same of certain
sewers constructed BY the street commits
sioners of the city. Also for the unlawful
diversion of the same in 1867, at the time
when the present culvert across the inter-
section Of Church and Maple streets, was
built. Messrs. 4. X. Hard and s. Haselton
for plaintiff; City Attorney Lawrence and
Daniel Roberts for the city.
WEDNESDAY, April II.
At hali-psst eleven yesterday morning
the jury in the Mech will case came in and
reported that they were unable to agree.
lnasm uch as they had come to this conclu-
sion after eightosn hours consideration they
were discharged by the court. We under
stand that tho final ballot taken just previ-
ous to their coming into court, showed that
they stood eight to four in favor of sustain
ing the will When they went out they
were evenly divided on the question.
Evidence on the part of the defendant is
bow being taken in the case of Thsyer vs..
city OF Burlington. The trial will occupy
another day.
THURSDAY, April Is.
The testimony and three Of the arguments
Of counsel in the case Of Thayer vs.. City of
Burlington. were concluded yesterday. The
closing argument for the plaintiff will be
made by E. R. Hard, this morning, alter
" hich the charge OF the court will be given
md the case 70 to the jury.
PERSONAL.