New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-02-26
THE WITNESS RULED OUT.
NOT TO TELL MRS. STEWARDS WORDS.


NOT TO TELL MRS STEWARDS WORDS
SURROGATE RANSOM SAYS THAT MRS. "EIhSH
Ellis TESTIMONY rs NOT COMPETENT
IN THE GREAT WILL cAsE-ARGU-
MpNTs OF COUNSEL.
The contestants in tho stewart viii case reccivea
severe set back yesterday, At tho ena Oh oas
b,l,t.pt arc,rmept by counsel on both sides, when
snr,oca,e Ransom ruled tnat Mrs Kate A. Wetherel
daughter of ex-Judgc J. Lawrence Smith and
Ieoa.ee under the win of 100000, was not COM
potent witness. The importance Of tho ruling rests
upou the surrogates opinion that Mrs. wethcrel, by
signing the much, talkedDf agreement came within
the forfeiture canse in the WILL and thus lost her
right TO her legacy When Mrs wethcrell was called
as witness at the close Of Der fathers testimony
early IN the week before last counsel for the pro
ponsns objected to her testimony the ground that
she had interest IN having the VIII set asde since
she had lost all rights under the VIII by signing the
agreement, and therefore would be a gamer If the
VIII were broken The Surrogate granted an adjourn
mont until yesterday morning that counsel might have
time to prepare arguments as to her interest in the
case. When the court opened yesterday morning
ex-Attorney-General Russell began arguments against
tie admission Of her testimony. He went over the
provisions of the agreement and of tho win In detail
He cited similar cases where testimony had been
raIld out, and maintained that Mrs Wetherell's only
interest lay in tho setting aside Of the Will Mr..
Russell was followed by bis associate, Elihu Root,
who in an earnest and brilliant series of arguments,
added to his former specific objections to Mrs.
wetherelps testimony. He maintained that the fact
that MS. WetheicPs testimony would prove to DO in
competent, however small part this might be, barred
Extraordinarily from the stand He also contended
that II there was an interest shown and the testi
mony tended to favor that interest," ii could not be
held that the competency should be decided by
balance of interest.
PLEA FOR MRS wETHERELL
Frederic r. Coudert, representing Mrs. Smith and
Mrs. Wetheren, declared that his client favored the
suspension Of tho WILL but that it not question
with her of favoring side or the other, but OF
tesI1ying when called upon. He was present, no
said, not much to answer arguments to the
competency of her testimony as to protect her inter-
csts by proving that she had not come within the
forfeiture clause, she had not taken active part
Or become active co-opeTator in the proceedings
instituted against the validity Of the Will She was
the records believing that the will should be
sustained, that It valid, and that IL was to her
interest 10 have the WIN sustained The question OF
her disqualification witness however, was OF
serious Importance since 1t involved as counsel for
the other side alleged her rights TO the legacy OF
100000. He therefore urged the Surrogate not to
decide that she had forfeited her legacy until II
clear that she had begun or had become party to
such proceedings.
Ex-Judge W. g. Choate next took up the line of
argument for the contestants, citing and explain
lag the provisions Of the agreement and Of the viii.
He was followed by Mr.. Cleveland, who spoke until
about o'clock Mr.. Root then responded to tho
arguments and explanations OF his advcrsaries with
keen satire. After few final touches by counsel
to their work Of the day. Surrogate Ransom announced
that he was prepared to maize ruling. 1
KEEN INTEREST IN THE CASE.
As the case had gone and the time drew near
for the ruling, those present bad become moro En-
cntly attentive. perhaps, than at any time during
the progress OF the long hearing When the Surfo-
cato took mp bis papers preparatory TO reviewing the
arguments every head was bent forward and all eyes
upon him. The room was perfectly stfl
The Surrogate said in part that he had made a
careful examination into the He said that al
though he had heard her father say repeatedly that
In his opinion the VIII should be sustained yet no
thought that that had bearing upon this partlc-
ular feature of the case He was graii1ed TINT In
his examination he had anticipated the arguments
that had been made by counsel for both Sides. He
had heard counsel for the contestants admit that the
forfeiture clause was valid Continuing he said in
part: -A"
THE sURRoGATEs OPINION.
.If It be true, then, that the forfeiture clause is
valid and that she has violated it, she hero to-
day having lost her interest. 1t that the
gifts to Mrs wetherell although in part PERSONAL
do include real properly. II that be true there can
be no doubt that this paragraph is perfectly valid to
this extent under the English ruling. Mrs. Weherell
is iegstec named in the win. IN her answer lin the
Butler suit she affirmed the viii. Witnesses have
disclosed the fact that after the fling Of this answer
she entered into The agreement. Ii Is claimed by
the proponents that this disqualles her. expressed
In the forfeiture clause The first question IS has she
violated its condton7 The second is. Is that con.
diton valid? She herself has testified that she thinks
the legacy was valid II certain TO me that her
pecuniaIy interest was protected By the agreement
Has she then directly or Indirectly Instituted pro-
ceedngs or become active party to themq
1t seems to that the real purpose Of the agree
mcnt Is pooling OF interests TO protect interests &C
Quirod under the VIII and to evade the code unite
all the parties under the name OF Resale Butler.
The suit Is really Instituted by Rosale Butler IN be-
half Of herself and IN behalf of them Tlcn we must
ascertain the legal effect Of the forfeiture clause Its
legal effect upon those who executed IL Is TO deprive
them from the benefits Of the VIII. They have elected
to disregard the provisions OF the VIII. l consider,
therefore, that Mrs. Wetheren has thus deprived her
self Of the legacy n tho will DO sustained hold that
she cannot be examined as to personal conversation
she held
At the end OF the surogate's words slight futier.
followed by lively hum, over the room ard then
every one rose in his seat Tho case was adjourned
until the first Monday In the first week OF April
The dates set for the continuance of the hearing were
the first three days OF the first three weeks OF that
month.
BITS OF LEGAL NEWS.