Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1891-10-15
Judge Cooper Says the Document is
/. Entirely Valid.
THE TESTATOR OF SOUND MIND
Facts, Law and Motives
Come Under Review.
REGISTERS REASON FOR REFUSAL


Special Correspondence of Gazetteand journal
DOVER, Oct, 12.--Registcr of Wills
e. Il. Cooper this morning rendered his
decision in the matter of the last will
and testament of George w. Cummins,
deceased, which was heard by him dur
ing the latter part of last month.
The decision is i'll favor of the will
Counsel for the contestants will file
an appeal and the case will 60 to the
supesior court for final determination.
SUMMARY OF THE DECISION.
The decision is announced in an OK
haustive and comprehensive opinion,
covering all the phases of the case, of
which the following is summary:
George w. Cummins, the testator,
was born January 18th, 1909, and died
on January 23d, 1891. lie was one of
the most prominent citizens of the State,
and during his long and useful life
filed various important positions with
signal credit and responsibility. He was
the father of four children--George w,
Sallie A., Louisa A. and Walter.
The two daughters have always been
the most exemplary ladies and the most
affectionate relations existed between
them and the father during his life.
Walter was educated for one of the
learned professions, that of law. He
was in 1883 appointed to the honorable
position of judge of the municipal court
of the metropolis of the State, and his
father looked upon the son with great
pride and with bright hopes for his sue
cess in the future. George W, Jr.,
though doubtless of amiable and kindly
disposed intentions, for number of
years previous had been and was pos
sessed of an exceeding convivial DISPOSE
ton. and his fondness for stimuants in
excess naturally disqualified his useful
ness as u man of business. This was
the state of affairs when George w.
Cummins, the elder, made his will in
1885.
The opinion then proceeded to cite in
detail the provisions of the will of 1885,
In which he devised to Walter Cummins
two farms containing about 635 acres,
subject to the payment of $500 per
annum to George w. Cummins, Jr.
This will remained unchanged until
May, 1888, when Mr.. Cummins came to
Dover bringing with him the will of
1885 and instructed Mr.. N. b. Smithers
10 make another will, which Mr..
6mithers testiiies that he did according
10 the instructions received from Mr.
Cummins and sent the same to him. In
this will he made various changes,
Among the most important he changed
the name of one of the executors, sub
shutting Alexander G. Cummins in place
of Walter Cummins, and also taking
from Walter all of the property devised
to him in the will of 1886 and giving it
otherwise. This will of May, 1888, re-
\ manned until December, 1888, when Mr..
Cummins again came to Dover and re-
quested Mr.. Smithers to make another
will When he came in May, 1888, he
was alone, but in December Of the same
year he was accompanied by his
brothers, ID. J. Cummins and A. G..
Cummins. Mr.. Smithers tcstifles that
the instructions were given to him by
Mr.. George w. Cummins and that no
other person had any control whatever
n the same.
The register then proceeded to cite in
setail the difference between the wills of
1886 and 1888;
1t is commended by the petitioners for
Inc review of this will and the codicil
hereto, that during the years 1888 and
$3.50, George w. Cummins was not OF
utficient sound disposing mind and
ind that in the making of said will, the
counsel for the contestants allege, undue
influence was eXerted upon the mind OF
the said George W. Cummins by his
brothers, David j. Cummins and Alex
ander G. Cummins. There was no evi
dence whatever TO warrant the belle
that there was undue influence. 1t i.
true that it was shown that Alexander
q Eunfninq and David 4 i,,t
were often in the company of George
w. Cummins, but it cannot be enter
tanned that because brothers are intimate
and are much together that improper
motives should BIO ascribed as reason
for such companionship. 1t is the Law
that although testator may be talkee
to,persuaded and reasoned with about thu
disposition of his estate that this is no
improper and is not undue influence
In fact If arguments should appeal K
his Judgment, and he should act accord
ingly,it would rather show testamentary
capacity. In order to invalidatc will
ON this ground the influence exortet
must be such as to take away the tesla
tors judgment and make it the will o.
another, and not of himself. But it Il
not even in evidence that either Alexan
der G. Cummins or David J. Cummin
ever influenced or ever attempted to in
fluence the mind of George w. Gum
minis in making this will. On the con
trary David j. Cummins testified tina
the only time he ever had any converse
ton with his brother about the will wa
in the office of Mr.. Smithers and in thu
presence of Mr.. Smithers, when he said
"Colonol, you have made no provision
for son, George. Hadn't you better d.
that in this will 7" And that Mr.. Cum
Minis said no. This part of the testi
mony is corroborated by Mr.. Smithers.
The opinion then, very carefully ant
IN close detail, reviews all the testimon,
given on both sides with respect to til
testator's mental capacity at the time h
made his will, particularly that par
teoiting the various business transaction
personally and correctly attended TO b.
EH, Cummins IL then proceeds:
Now We will consider the provision
al tho wills and tho reason why til
tlSanges were made The radical Chang
Is the alterations in the will of 1885, a
made In May 1888. Mr.. Smithers testi
fies that Mr.. Cummins did not tell hir
SO in so many words but said and di
enough to satisfy him that the chang
was made on account of the unfortunat
position that Walter had gotten into j
Wilmington. When Mr. Cummins mad
his May will he did not know of the eS
tent of the operations of Walter an
while he took from him the executor
ship which he was to have under wi
of 1885, together with William Pol
z Cummins, he also took from him the do
vises made by the same will and gay
him with George an annuity and mad