Custer chronicle. [volume] (Custer City, Black Hills, D.T. [S.D.]) 1880-1890, 1889-12-14
Mr.. NELSON'S WILL.
az II. RIDER

Is c~orroborated. IL is clear, from the testi-
mony of Lady Holmhurst, that when on
board the Inflated Kangaroo, Miss Smith
ers had no tattoo marks upon her Shout
ders. 1t is equally clear, from the I'M
shaken testimony of Mrs. Thomas, that
when she was rescued bv the Amercan
whaler her back was marked with .Asfoo-
ing, then in the healing stage-wfth tat
tooing which could not possibly have been
inflicted by herself or by The child, who
was her sole living companion. IL is also
proved that there was seen upon the is
land by Mrs. Thomas the dead body Of a
man, which she was informed was that of
Mr.. Meeson, and which she here in court
identified by means of a photograph. Alse,
this same witness produced a shell which
she picked up in one of the huts, said TO
be the shell used by the sailors to drink
the rum hat led to their destruction; and
she swore that she saw a sailors hat lying
on the shore. Now, all this IL corrobora.
tive evidence, and of q sort not 10 be de-
spised. Indeed, as 10 one point, that OF the
approximate date of the execution of the
tattooing, il is to my mind final. Still,
there does remain an enormous amount
tina must be accepted or not according as
TO whether or not credence can be placed
in the unsupported testimony of Miss
Smithers. for we cannot call on a child 30
young as the present Lord Holmhurst to
bear witness in a court of justice. IL Miss
Smithers, for instance, is not speaking the
truth when she d clares that the signature
of the t~estator y,as tattooed upon her back
under his immediate direction, or that IL
was tattooed in the presence of the two
sailors, Butt and Jones, whose signatures
were also tattooed in the presence Of the
t~estatos and Of each other, no will at all
was executed, and the plaintiffs case col
lapses utterly, since, from the very nature
Of the facts, evidence az TO handwriting
would, of course. be useless. Now, / APP
proach the decision of this point after anx-
ious thought n some hesitation. 1t is
not a light thing to set aside a formally
executed document such as the will OF
Nov. 10, upon which the defendants rely,
II TO entirely alter the deyolution of q
vast amount of property upon the unsup-
ported testimony of a single witness. IL
seems TO me, however, that there are two
tests which the Court can more or less set
up as standards, wherewith TO measure
the truth of the matter. The first of these
is the accepted probability of the action OF
an individual under any given set of cir
cumstances, as draw from our common
knowledge of e~aan nature; and second.
the behavior and tone OF the witness, both
In the box and in the course of circum-
stances that led to her appearance there.
/ will take the last OF those two first, and
/ may as well state, without further de-
lay, that / am convinced of the truth of
the story told by Miss Smithers. II would
TO my mind be impossible for n man.
whose intelligence had been trained by
years of experience in this n other
courts, and whose daily duty it is to dis
criminate as TO the credibility ~ testimony,
TO disbelieve the history so circumstantial-
~ detailed in the box by Miss Smithers.
~(Sensation.) l watched her demeanor both
under examination and oross-examination
very closely indeed, and / am convinced
that she was telling the absolute truth so
far as she knew il.
And now to come TO the second point.
1t has been suggested, as throwing doubt
upon Miss Smithers' story, that the exist
ence of an engagement to marry, between
her and the plaintiff, may have prompted
her to concoct a monstrous fraud for his
benefit; and this is suggested although at
the time of the execution Of the tattooing
no such engagement did, as q matter OF
fact, exist, or was within measurable dis
lance of the parties. IL did not exist, said
the Acknowledgement; but the disposing
mind existed-in other words, that she
was then in love'-if, notwithst anding
Mr.. Attorneys difficulty in defining it, I
may use the term-with the plaintiff. This
may or may not have been the case. There
are some things which it is quite beyond
the power of any judge or jury to decide,
and one of them certainly is, at what ex-
act period OF her acquaintance with a flu
ture husband a young lady's regard turns
into a warmer feeling. But ~supposing
that the Acknowledgement is right, and
that although she at that moment clearly
had no prospect of marrying him, since
she had left England TO seek her fortune
at the Antipodes, and plaintiff was looked
upon by this lady with that kind of regard
which is supposed to precede the matri-
monial contract. the circumstance, in my
mind, tells rather in his favor than against
him. For in passing l may remark that
this young lady has lone a thing which is,
in its way, little short of heroic; the more
SO, because il has a ludicrous side. She
has submitted to an operation which must
not only have been painful, but which is
and always will be a blot upon her beauty.
/ am inclined to agree with the Attorney
General when he says that she did not
make this sacrifice without a motive,
which may have sprung from a keen sense
Of justice, and of gratitude to the plaintiff
for his interference on her behalf, or from
a warmer feeling. In either case there is
nothing discreditable about i~t--rather the
reverse, in fact; and, taken by itself, there
is certainly nothing here to cause me to
disbelieye the evidence OF Miss Smithers.
"One question only seems to me TO re-
main. Is there anything to show that the
testator was not, at the time Of the execu-
ton Of the will, Of \ sound and disposing
minds-aDd is there anything In his con-
duct or history to render the hypothesis Of
his having executed this will so improba-
BILE that the Court should take the i'm
probability into account AS to the first
point, i can find nothing. Miss Smithers
expressly swore that it was not the case:
nor was her statement shaken by q very
searching cross-examination. She admit
ted, indeed. that shortly before death he
wandered in his mind, and thought that
he was surrounded by the shades Of authors
waiting to be revenged upon him. But it
Is no uncommon thing for the mind thus
to fail at the last. and 1t Is not extraordin-
airy that this dying man should c~onjure
before his brain the shapes Of those with