The New York herald., 1878-03-12
A. 7. STEWARDS WILL.
claimants for the Property Trying
to Break It.
BITTER LEGAL CONTROVERSY
Interesting Points of Law Raised
by Both Sides.

MI ~ T. Stewart died on the lotu VI ApS", A''o
Three days later upon the petition OF Mrs. stewart
his will was admitted to prooate- In her petinon
among other things she stated that no isit
survivtpc him no heirs-at.Iaw or next OF
kin. On the succeeding day, the will bearing
date March 81 1878, with TWO codics Of
the same date, was admitted to probate Upon
the 3lst OF May ensuing the Surrogate,
upon petition Of James Bailey, processing 10
aot for himself and certain other alleged relatives of
Mr. Stewart, granted an order directing That inc
several persons named In the VIII and codicils an
exscutors dcvisses and legaiees show cause before
him. on the 18th day OF Juno, 1876 why the will Of
n. Stewart "shoud not DO adjudged void and be
revoked vacated and set aside" Mr.. Bailey, IN his
pstt,ou inserted that no aud various other persons
named were collateral relatives Of Mr.. stewart,
and that they had been cited to ap
pear before the Surrogate upon the ap-
plication for the probate. He further asserts
citation had been served upon HIM before tho
admission Of will to probate that he had oppor.
tunity TO examine tho Witnesses to the will; that Tho
application for the probate; OF the will was not made
publicly openly, or at The courtroom or oince OF
the Surrogate, but was made at night, privately
secretly and In great haste upon tho same day Of tho
funeral and without any notice to the petitioner or
any oi the heirs-at-law. After an extended hearing
before the Surrogate and careful examination OF all
the questions Of law involved IN the case
missed. and from this decision an appeal
was taken tho General Term oil the Su premo Court
Wlinam o. Bartlett. Ehhu Root and william D..
Booth appeared or the appellani and Messrs. Henry
William A. Beach - counsel Tor tho respondents
APPELLANTS siDx OF THk CASE.
For she appellun. I. Was urged that tho Surrogate
upon this appeal all the tacts alleged IN the petition
arc 70 be taken as mae That the probate
adjudication thereon violation OF the rights OF
the heirs-a,- law; that the application was not ad
drcsssd 10 the discretion OF the Surrogate, as he un
warrantabiy assumes; that It was u matter Of
absolute right, and that II is difficult 10 con-
ssive what rights be vested u more NIB
soute ana more securely beyond the power Of Sur
rogAie's arbitrary discretion than The right 10 be
oned, to be heard aud TO require the production OF
witnesses. to contest the probate OF will Of real
estate. Counsel then proceeded to state that tho
Surrogate relies rs support Tor the probate made un
stated in the petition oil the up
psisni upon the evidence offered to him 10 tho verl
hed petition OF Mrs stewart that the dccedent left
hsIrs-at-luw. That petition Is verified upon nor-
nation and beiiel. IL says:-''Your petitioner fur
thsr shows shat the widow, only heirs and next OF
said deoedent lett HIM surviving neithor lather,
mother brother or sister, Or descendant OF any or
any relation or oi KIN Of saia deceased This.
urged, Is simply impossible In the nature of
things, that there cannot DC a case IN which man
departs this lite leaving real estate and
emitted OF mis- iutestacy that under
ths statutes cannot be case in which the person
who entitled take real estate IN case OF intestacy
10 euttleu notice aud 10 come In and contest
The validity Of anv paper propounded us Will; and
that It follows that upon the lace OF the papers pre-
Will was o violation oi the stntuatory rights
oi some ono. Another point urged that the
citing OF tho Court at which the ailo. cd proof
taken was not pubic, AN required BY INV. II was IN.
sisted that the provisions OF The Revised Statutes re-
atng to the Surrogates power TO tuxc proof OF Wills
Indicate that proof only be taken at court
Upon these various points It was urged IN conclusion
that order cismissing the petition should bo re-
veYsed proceedings RENTED to the Surrogate
Tor hearing upon the merits
SUSTAINING TUE WILL.
The prelimiu poiut raised me opposing
arr uncut was, that tho petition oi appeal should
be ds missed upon the ground that such petition does
not iacts sullcient TO ente the petitioner to
hearing in this Court. Alter discussing Al length
ths point It was then urged that the Surrogate
under the Revised Statutes, mad no jurisdiction
thory to aside thi probate OF tho Will us will o
real estate The other points raised were that the
ot 1910 gives the Surrogate no authority to re.
yoke tho probate OF will either of resl
estate OF personal estate that The order OF
the surrogate dsnissing the proceedings OF appellant
10 not appealabe; that " Surrogate POSSESSED the
legal power TO grant the motion OF appellant 10 set
aside Tue probate oil Tue will aud codic oi Mr. Stewart
II WAS discretionary power, and, therefore, that no
appeal lies IRON his dec'son; that the exercise VI
discretion Is 10 review beyond MI question that
d.screiiou 10 ths ut bar properly exercised
aud Of the Surrogate should be sustared
AL these various points were ampned nt great
giving quite extenued biographical skelch OF Mr.
Stewart and the growth OF his business until he
became prerninent among the merchant princes Of
the World Il was Insisted that when he made hrs
will ns ciear ana vigorous nj any time
kEGgLARIry PROCEEDINGS.
Mr. Ciintou, Dy way oil recupitulaton, closed his
gument as ioIiows-"l have shown that the proceed.
ings before the surrogate were In every respect
lai, legal aud proper have shown that
The surrogate had no legal power TO
uecreo admitting to probate The Will Of Mr. Stewart.
have shown that even II the Surrogate had power
" grant mo mo,on OF appellant, it was discrelioh
sry power, aud that appeal lies from his decision.
l have shown, upon the papers before the surro-
gate, u appeared that James i!cy, the appellant
ho lh. md mt Hpr
should he resort 10 The proper reinedy. Although
appellant tailed 10 show any ia Is tending
u prove undue influence upon Mr. Stewart win
respect to his will respondents proved by the positive
evidence oi eight witnosses that undue
used. have shown mat, even IN the Impossible event
vi the Will aud codcils In qucsLon bong ad-
Judged null ana VOID and no oeneht of nd
Vantage would or could thereby accrue 10 the
appellant, tor the reason that Mr.. Stewart more
than twenty years rince, IN due form Of law,
executed viii giving all his real estate to his
wIe that II the wili OF 1918 hud never been
cntcd Mrs. Stewart, by the wal Of 1906, would have
taken devisee all the real estate. have shown
that Mr.. recognized Mr..
Bailey. the appellant, as relative The proof
that Tor the last nfty yeats Mr. stewart in
90 way recognized The appellant as related 10 him.
rne proof Is equally clear ANA uodispuied that Mr.
Stewart continually asserted 10 his wife and most
Intimate iricnds that lie had no relatives living. l
have shown that the motion before hc surrogate had
been decided iavor OF the appellant such decision
would have been vi benefit or advantage whatever
" him, but would have beon productive Of
great aud Hreparaoie INJURY 70 MIS- stewart
have shown, that upon the undisputcd iacts
appearing IN the papers, upon principles
VI law and tquiy, II was the bounden duty oil tho
Surrogate 10 rcndcr the decision he did, denying the
motion Of pctuivner aud dis his proceedings,
and that his decision should DO affirmed. The
tum und substance OF the claim set up
behalf vi the appellant Is that some unknown
person, In an unknown way, used an unknown
lnhucuce TO the prejudice OF unknown relatives The
Law tortured ~ IND on-exslent remedy Ia order
10 redress u none xistent wrong Whoever can DIS
cover sufcent reuson Tor reversing the Surrogate's
Do isioE must possess legal acumen
A. the close OF the argument tho Court took the
papers, rescrvIng Iva decision.