Custer chronicle. [volume] (Custer City, Black Hills, D.T. [S.D.]) 1880-1890, 1889-12-07
had seen the hat OF on, OF the szlors. and

, a seen the hat OF one or the Seniors, and
the rum-cask two-thirds empty. and also
produced the shell out OF which the men
I, had drunk the rum (which Shell the Judge
recalled Augusta 10 IDENTIFY. What was
most important, however, was hat She
gave the most distinct evidence that she
had herself seen the late Mr. Messon in
TERED, and identified the body as that OF
the late publisher by picking out his pho
tograph from among a bundle OF a dozen
that were handed 10 her. Also she swore
that when Augusta came aboard tho
whaler the tattoo marks on her back were
not healed.
No cross-examination OF the witness
worth the name having been attempted.
James called a clerk from the office of the
Late OWNERS Of the r. NJ. s. Kangaroo, who
produced the roll of the ship, Or which the
n8-OrS Of the two sailors, Johnnie Butt
aha Bill Jones, duly appeared.
This closed the plaintiffs case. and the
Attorney-General at once proceeded to call
his witnesses, reserying his remarks till
the conclusion of the evidence. lie had
only two witnesses, Mr.. Todd. the lawyer
who drew and attested the will OF Nov. 10,
and his clerk, who also attested il, and
their examination did not take long. In
cross-examination, however, both these
witnesses admitted that the testator was
in a great state Of passion whom he exc
cuted the will, and gave details of the live
ly scene that then occurred.
Then the ACKNOWLEDGEMENT rose TO I'D
dress the Court for the defendants. He
said there were two questions before the
Court, reserving, for the present, she ques-
ton as TO the admissibility of the evidence
of Augusta Smithers: aud those were
first, did the tattoo marks upon the iady's
back constitute a will at all; and, second
ly. supposing that they did, was il proved
TO the satisfaction of the Court that these
undated marks were duly executed by a
sane n uninfluenced man, in the pres
ence OF the Witnesses, as re Iuired by the
statute. He maintained, in the first place,
that these marks were no will within the
meaning OF the statute; but, feeling That
he was not on very sound ground on this
point, quickly passed on to the other as
poets OF the case. With much force and
ability he dwe:t upon the ~strIngoness Of
the whole story, aud how it rested solely
upon the evidence Of one witness, Angus
Ia Smithers. 1t was Only il the Court ac-
cepted her evidence as it stood that IL
could come to the conclusion that the will
was executed at all, or, indeed, that the
two attesting witnesses were on the island
at all. Considering the relations which
existed between this witness and he plain
till, was the Court prepared to accept her
evidence in this unreserycl ways Was it
prepared 10 decide that this i'll, In favor
Of a man with whom the testator had vio-
lently quarreled, and had iisinherited in
consequence of that quarrel, was not, il
indeed il was executed at all, extorted by
this lady from a weak and dying, and
possibly a deranged, man2 And with this
question the learned gentleman sat down.
He was followed briefly by tho Solicitor
General and Mr.. Fiddlestick: but though
they talked fluently enough. addressing
themselves TO various minor points. lh.y
had nothing fresh OF interest to adduce,
and, finishing at half-past three. James
rose TO reply on the whole caSo GA behalf
OF the plaintiff.
There as q moments pause while he
was arranging his notes. and then, just
Is he was about to begin, the Judge said.
aTietly. Thank you, Mr.. Short, | do not
think that | need trouble YOU" and James
sat down with q gasp, for ho knew THAI
the cause was won.
i Then his Lordship began. and, after
giving q mastery summary OF the whols
2 case, concluded as follows: such are the
, details OF the most remarkable probate
cause that | ever remember to have had
brought TO mr. notice, either during my
career at the bar or on the bench. 10 Will
be obvious, as the learned Attorney-Gsn-
aral has said, that the whole case really
go Tween two points. is the document
on the back OF Augusta Smitaers q suf-
} hclent will To carry the property, and, IL
SO, is the unsupported story of the lady as
TO the execution of the document 10 be be-
? lieved? Nov, what does the In under
stand by the term VIII, Surely il IN
derstands some writing tfat expresses the
wish or will Of a person IS to the DISPOSE
) ton of his property Glter his deccase. This
writing must be executed with certain
formalities; but If il is so executed by q
person not laboring under any mental or
other disability it is indefeasible. except by
the subsequent execution OF a fresh testa-
? mentary document. or By Its destruction
or attempted destruction, nHtmo cpocd
iii. or by marriage. Subject 10 these form
alities required by the law. the form of the
document-provided that its meaning is
: clear-is immaterial. No u. do he tattoo
marks on the back of this lady constitute
such a document. and do they convey the
! true last will or wish Of the testators This
? Is the first point that | have to decide. and
] l decide il in the affirmative. IL Is true
that it is not usual for testamentary docu-
ments to be tattooed upon the skin OF .
} human being; but. because it is not usual,
IL does not follow that u tattooed docu-
I ment is not a valid one. The ninth SEQ
ton of the Statute of l Vic, cap. %, speci-
fies that no will shall be valid unless il
shall be in writing: but cannot this tattoo
, ing be considered as writing within the
meaning of the act, / am clearly of opin-
ion that IL can, il only on tho ground that
the material used was ink-a natural ink,
it is true, that OF the cuttle-ish, but still
ink; for l may remark hat the natural
81 prQduct of The ei1ftbe-fi8h Ms 6 ono ttWG
large y usedf IN TINS country nor tl1&e very
purpose. Further, in reference TO this
part of the case, IL must be borne In mind
that the testator wa no eccentric being,
who from within or perversity chose this
extraordinary method of signifying his
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