The New York herald., 1879-10-31

at which he assisted Father Dyer being the server Sr
could have been nicer consong.
"It is thus seem" said Mr.. Mitchell. 'that the
nothing nicer or more consoling, quoted by Mr..
Gerry as relating to the dinner. fact written
with reference to the mass which took place on the
day after the dinner. The above is one of several
inaccuracies in Mr. Gerry's statement of facts
MR.. GERRY's ANCESTOR.
when Elbridge Gerry, of Revolutionary note,
he continued, '.was desirous of accomplishing
certain political result in the state OF Massa-
chusetts, tho only difficulty i'll the way was
the fact that tho districts into which the
people We're divided divided that Mr..
result were in minority. 1t is that illus
trous gentleman who is identified with this
have devised that plan of redistricting the State III
such way that instead of having his opponents
always successful he could, with exactly the same
votes. succeed IN the accomplishment of his politi-
cal purposes. Hereditary traits of mind
firmly fixed as those which relate to the physical
condition OF man. AID do say that that statement
in that brief is legal gerry wandering that my
friend Mr.. Gerry ought not to have rcsorted to.
and you will hnd that that is u sample of the way
which the facts in this have been picked ont,
and that the conclusions drawn from extracts.
which with the dashes) all true and according
to tho text. are entirely without any foundation.
Mr. Gerrys face turned scarlet, and jumping to
his feet. he shouted: I regret my learned friend is
compelled to illustrate the weakness of his argu-
ment by an attack upon my ancestor. II his
well known mine l might retaliate but leave
them to the contempt they deserve
Mr.. Mitchell then passed' to the technical points
involved in the case III referring the in the
the t.siarix directs her share CT the house 20
Mr. Bradley after her sisters DEATH he said that the
now living and under the will has life
estate IN this house. which Is indisputably
alien The obieet Of tSs eamtestapa an
is obtain decision OF the Surrogate that this is
void devise. under the authority conferred upon tho
Surrogate of New York county to construe wills by
the laws OF 1870 Mr.. Mitchell claimed that the Sur
rogate has by that act the power is
vested in and exercised by the Supreme Court to
construction
submitted he said. THAT be found in
which jurisdiction has been exercised in the Su-
preme Court in advance OF the event upon which q
right Of action may accrue Suppose Mr. Bradley
should not survive Miss Marx and suppose Mr..
Bradley to be not an alien but citizen able of
taking by devise. In such would not his
heirs. upon the decease OF Miss Marx. have right
of acton against her heirs? Would this proceeding
be any bar to such action by themY
NOT BEFORE THE COURT.
1--WE respectfully submit that in such case Is
supposed the only parties in interest would be the
heirs OF Miss Marx and the heirs OF Mr.. Bradley
They are not now before the Court. and cannot be
brought to court under this proceeding, and
known. They are not now represented by Miss
Marx and by Mr.. Bradley. for Mr.. Bradley comedies
that Miss Marks present estate for life is good. We
think presenting these features be found
in which the Supreme Court has exercised such ju-
risdiction, and that the Surrogate should not now
pass upon the validity of the remainder upon the
lite of Miss Marx. for the that the persons
who alone may be interested in this question are
undetermined aud uncertain. and that decision
would be premature"
MIR. Mitchell then went to examine this point
trix use the words my share Of the SAID house,"
and in constituting the words said that they mean
'tha proceeds" of the share; and the testatrx hav
ing given full power of sale to her executor has
enabled this intention to be carried out without any
violence to the statute as TO alienage; the intention
sonsl property, seems to be evident 1T is there
fore submitted" Mr.. Mitchell argued ''that upon
MISS Marks death Mr.. Bradley will be entitled to
the proceeds OF the decedents one-halt Of
the Forteth street house and lot Even
is that the 0i
the testatrix that Mr.. Bradley should If he
survived Miss Marx, have the income from tho For.
tieth street house, through tho executor and
trustee. under the terms OF the third c Of the
will. which creates express trust for the benefit
thorities OH this point Mr.. Mitchell went on to
argue that II the trust to Mr. Bradley is express
conclusion he claimed that s with our statutes.
specifying the particular inequalities OF aliens
and defining express trusts and the rights OF bene
hciaries in the same. 1t seems to us quite useless
and unprohtablc to 20 further and follow the
learned counsel into the English decisions as to
escheat, which question cannot arise here In the
present state Of this proceeding and the doctrines
Illustration of which is not before the Court"
At the close this argument Mr.. Delaney appeared
as counsel for the Little Sisters Of the Poor to whom
q small legacy had been left by deceased. The So
cioty had not been incorporated under the namo
mentioned in the will; but Mr. Delaney s,id that by
decisions OF Judge Van Worst the association styled
in the act Of incorporation as ''Home for the Aged
Little Sisters of the Poor" was intended. The
Surrogate said he would have chance to prove the
justice OF his claim.
L A
Mr.. Mitchell. who had stepped over and spoken .
few words in low tone to Mr.. Gerry, arose and
said May say one word to Your Honor. and. as
will pardon me for seeking to detain you and for
asking permission to speak with reference to it.
The alusion which made seems to have Eeen taken
by my friend, Mr.. Gerry. one which was intended
to be personally offensive to him. There could have
been nothing further from my intention. and II the
cloth or Mr.. Gerry consider that there was any
thing offensive, l bog that they may under
stand now that have nothing but tho highest
mot mn n mt FIR hfs "A
tingushed ancestor The allusion which made to
the matter was one which thought fair and
proper one. and the idea which intended t, convey
was that there YVES nobody except Gerry who
could present the facts they have been presented
in this court, just as there whose
cestor could produce majority which should be in
favor of Mr. Elbridge Gerry except Mr.. Gerry him
self. There was nothing further from me than any
idea of wounding the feelings Of my friend and il T
have done 30 / regret it..
Inc surrogate-I assure you tho Court took it rs
DIR. MGLYNNs DEFENCE
An adjournment was then had until Monday af-
ternoon next. ut two o'clock. when Mr.. Charles Mat
thews will appear on behalf of DR.. McGlynn. III
ls brief he starts out by citing the first second
and third clauses Of the will in dispute. The esta
trix. i'll the third clause. says:-"It my will aud
desire that my executor. hereinafter named, pay to
Rev. A. j. u. Bradley all tho income derived from
cruing thereon" Mr.. Matthews goes on sr to argue
that every devise of any in real property to
q person who ut the death of the testator shall DO
alien not authorized to hold legal estate shall
be void and whatever interest in real estate
Is given by the terms of the will to
Bradley undoubtedly falls within prohibition
of the statute; but the legal estate is in the exec
utor and not in Bradley and though Bradley has u
right to compel the executor To pay him the rents
and profits OF the estate after they have been col
leced he does not take any interest In the lands
such. Mr. Matthews contends that there is devise,
by implication. to the executors of the real estate
and by the third clause of the will express
Tor the benefit OF bradley. and the words OF tho
will 20 far to show the intention OF tho
tatrix to vest legal estate in the OK
ecutor. Having descanted ut length upon
these legal questions Mr.. Matthews goes on
to consider the question Of "undue inf uence" aud
reviews the testimony at length. The decedent at
this time," he says. "appears to have teen woman
I6A ~ ul.u