The morning news. [volume] (Savannah, Ga.) 1887-1900, 1891-10-24
MISUNDERSTANDING
THE SMITH WILL CASE TAKES a
NEW TURN.

Of the New Jersey Millionaire Con
gressman-Ths VIII Admitted &c
Probate-Lawysr OByrne Says ths
Case win be Taken TO a Higher
Court Still.
The celebrated Hezekiah B. Smith vii
case, in which Capt. Elton A. Smith Of thil
city. son of the teststor, was claimant FOL
the estate which had been left fer the
establishment OF "a industrial school, with
out any provision being made for the dead
mans family has been decided adversely, tc
the claimants by Chancellor McGiL of the
New Jersey court Of chsncery.
The amount involved was over $500, 900
Tho present decision is on an appeal from
the Burlington orphans court, which re-
versad an order of the surrogate made Nov.
IA, 1887, which admitted to probate as the
last will of Smith, a paper dated Aug. 4,
1885.
The win Of Smith was contested by the
dead mans family on the ground that he
was insane. as shown by his exclusion from
his bounty OF his legitimate children, and
on the ground OF uudue influence by Miss
Agnes Gilkerson, the other woman in the
case.
The legal status of Eveline Verona Smith
as the wife Of Hezekiah B. Smith, says the
chancellor, is fully established. In 1858,
seven years after his marriage, he met
Agnes Gilkerson at Lowell. She was then a
young girl OF L. who had come from a
town in Vermont to find employment in the
factories. A few months later this girl was
living with him. Smith was infatuated
with her and she used her power over him.
MRS. SMITHS EARLY LIFE.
Smith sent the girl to school in Lowell.
! And In 1SI1Q n Hbiladalrobia VIII no \
led medicine for two years. SmitA declared
he loved the girl and that he did not care
| who knew IL. In 1865 he took her to Smith
Vile, New Jersey, where be built a large
factory, and provided himself with a com
Portable mansion, over which he inst led
| Agnes. here she was called Mrs. Smith,
and was recognized as his lawful wife.
Smith destroyed much Of his correspo md
ence with his true wife, and then decided TO
her the house in which they had lived at
| Woodstock, VT. y her maiden name,
Eveline Verona English.
That he intended q permanent repudia-
ton OF his wife is demonstrated, says the
chancellor, by his destruction of his letters
the execution of the decd 60 her by her
maiden name, and his leaving New Eng
land and introducing Miss Gilkerson as his
wife He was twenty three years her senior,
and greatly her Interior IN intellect. This
enhanced Ter brilliancy in his eyes.
AMBITIOUS TO MARRY.
It was her ambition 20 be his wife: she
exerted all her watchfulness to keep Smiths
children away. She had no children and
| she utilized the fact Of her medical eduoa-
| ton to make Smith believe that he lacked
the power Of procrsation. His announce
| ment that he never married Eveline may be
attributed TO his belief that the ceremony
was Illegal His declaration that he had
Uaa u = h1HEar k.snNA
father may have been founded upon his
faith in Agnes advice.
ut appears to me- says the chancellor,
| ITO be impossible under the proofs tha
| Smith had, that, with his strong common
sense, which had made him rich, he should
have made the assumptions attributed to
| him by various witnesses
The Interpretation which treats his declar-
ahonS as falsehoodS appears to be susceptible
OF stronger support 1t was Of vital i'm
porJance to Agnes that Smiths compact
| with her to cast of his family should be
| faithfully observed, for at Smithvills she
had risen in appearance from the position
she held at first to the honorable position of
| wife.
THE SITUATION WITH SMITH.
The situation of Smith was little different
he had introduced this young woman as
his wife IN new community where he had
/ AA'oobCA uAn ooiAhS ShQ ud0 O6COul6 T63p6CL-
| ed. As ne rose In public estimation
he was made a bank and railroad director,
and became ambitious to hold greater off,
| ces. If, after the death Of Agnes, he paused
to consider his course, 1t Is evident he chose
to continue in 1t. and TO further raise HIM
self In pu lie estimation by posing as a phil
| anthropist.
TIE court points out as against the pre-
| sumption OF undue influence the lapse Of
five years between the making of the will
and the death Of Agnes, and says that 1t
| has failed to reach the conclusion Of the or
| phans court that the will should be denied
| probate. Such q conclusion would have
| accorded with the chancelior'S sympathy
| for the wife and children, but his
strong conviction that Smith possessed
testaLnentaTy capacity and was free from
undue influence must control his judicial
action. II "a testator obser YES the require
ments of the law and possesses testament
AIRY capacity he may lawfully make an un-
just will.
In reversing the decree and admitting the
will to probate Chancellor McGill taxes the
costs upon the estate.
ATTORNEY o'RYRNE TALKS.
NJ. A. OByTne, ESQ.,, of this city, one of
the counsel for the claimants, told MORN
| ING NEWS reporter yesterday that the de-
cislon OF sChau cellor McGill by no means
l AAA1cc tG6 E6S4kb Va VIC case. III WAL
at once be taken up to the court OF errors
and appeals of New Jersey, W hich is similar
TO the supreme court of Georgia. If that
| tribunal uphoida Chancellor MoC5:ll then
the case will be begun on an entirely new
| point, and a point, Mr.. O'Byrne thinks,
which will break the will and give the es-
tate to the dead mans family. The point
| will be the invalidiEy Of the beauest on the
| ground that it is too vague and uncertain,
and is therefore void. Smith left ell his prop
| erty for the establishment Of an industrial
school for teaching young men mschau-
| ical pursuits. He didn't state where the
| school should be located or what branches
OF trade SHOULD be taught, and Mr.. O'Byrne
said there is little doubt that the failure to
specify those particular points is sufficient
TO invalidats the will
SIMILAR TO THE TILDEN WILL CONTEST.
It was exactly ON these grounds that the
will OF the late Samuel J. Tilden was
broken.
Mr.. O'Byrne said that counsel had all
along felt sure OF winning the fight on the
ground of vagueness and uncertainty, but
had brought suit on the merits Just decided
adversely by Chancellor McGill for the our
pose OF bringing out the real facts of the
case and showing the actions of Smith to-
ward his family for the purpose of strength
ening the position of the claimants in the
final contest.
A Fire in the Suburbs.