The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1893-12-29

will. As to mental capacity, it is sntii-
cicnt If he could bring in review before
his mind the property he possessed,
then it is his true will. To make vii!
does not require the highest mind.
The mind may be to some extent de-
bilitated, memory impaired; indeed he
may not be able to transact many OF the
business affairs OF life, but il he had the
ability TO comprehend this property.
tie law is satisfied the testator had
sufficient capacity. II matters not II
he was under influence OF resentment
or dislike toward children, which in
fuenced provisions OF the will. II he
was unjust, unreasonable, the fault was
his own, but is not to be visited on him
or others to the extent OF setting aside
his will.
THE DATE ALL IMPORTANT.
The testimony OF iacts and circum.
stances may be heard, but the date is
all important, June %, 1891. 1t is only
necessary that he was Of sound mind at
that date, even ii he were not before
and after.
MIR. Reilly was man of strong char
actor and business methods, capable OF
successfully managing an extensive and
growing business. He attended to his
affairs in person, until the December
following the execution OF the will. In
managing the business, we VIII show,
he executed papers in the usual course
Of business checks, notes, etc, during
all that summer, on down until he was
confined TO his home by his fatal ILL
ness. He attended to outside business,
and though iorgetful, when aroused his
old time vigor returned. In debating
the will the provisions were MS own.
after study and mature reflection, and
in the changes made he exhibited full
appreciation OF the situation and what
he desired. There was no distempered
mind, and he declared many times his
father had made good will; that will
will be offered for your consideration,
and will show features similar to the
one in contest. This shows that it was
n settled conviction that made Michael
Reilly draw the will he signed. =.
DELAY IN APPEAL.
There was delay in appealing this
will. That is matter to be considered.
1t is 4 declaration BY the appellants
that he was OF sound mind when the
will was drawn. Had there been
any question in their minds
as to his mind, steps would
have at once been taken to pro-
test probate, and not wait many months
aiterward. And more, they received.
during these eleven months liberal al
lownncea and James accepted employ
ment from the trustees and continued
there q long period.
II We are able to produce this testi-
mony we can insist that this paper is
the last will OF Michael Reilly. Under
rules OF court we shalt offer evidence as
to the execution, and then the contest
ants offer evidence in attack, and then
we will offer evidence in support and
rebuttal, and then will come the argu-
ment to the jury.
Mr.. HUBBARD SPEAKS.
Mr.. W. P. Hubbard then addressed
the jury on behalf of the contestants.
He alluded to the able statement by
Judge Melvin; but he did not tell, said
the speaker, who are the propounders or
what the will is IIo would do both,
and speak for the living children, and
WAS sure the jury would agree that the
will is not the true aud last will OF
Michael Reilly. Speaking oil the trus-
tees, he said they are not bound by ties
of friendship or blood, as are the chill
dren. He referred to the will OF 1855,
the trustees OF which were his children,
to whom he should naturally turn.
Not so in the will OF 1891. The pro-
Founders are Bishop Kahn and Rev.
Father Sullivan, who, while eminently
respectable and high in their profess
sion, are not the gentlemen to whom
Michael Reilly would naturally leave
his property in trust. Tie business
was to be carried on by n manager, an
implication that the trustees are not
capable. Then, too, the will says the
property shall not be invested in church
property, in which they would natural
iy invest
He thon said DO would read the en-
tire will, which shows lack OF mental
capacity on the part OF the maker. In
early lie, he had, "a was claimed
shown an aptitude for business. That
state OF affairs did not continue up to
the time of tho execution OF the will or
to nearly the time Of his death. There
were FIVE sons and one daughter; all
that a father should DC proud OF. The
son Thomas was all he had been paint.
ed, dutiful son who gave his life to the
service OF his father. Yet this testator
treated Thomas children just as he
treated the others, and yet it is claimed
he was in control Of his entire mental
capacity. You cannot believe it. Short
Iy after his second marriage there was
change in his mental condition; lie be-
came irrational, easily influenced, in
consistent, iorgettu. and would do iu-
consistent things.
He did not believe the business asso.
ciates of Mr.. Reilly would testify that
he retained up to June 20. 1891, all OF
his old dime vigor and shrewdness. He
recalled instances at that period OF his
impaired mind.
Four or five years before his death, he
said, nurse was necessary 10 dress and
undress him; to tell him where he was
to perform the most mental Offices This
will be told by the witnesses, who
know OF it.
June %, 1891, was tho date of the OK
ecution OF the paper, here offered by the
trustees, as the last, true will, and ask
your verdict that it is true. When that
paper was signed, he had forgotten how
to spell his own name. This man OF
knowledge, culture and vigor, actually
forgot how to spell bis own name.
EFFECT OF THE WILL.
That paper ties up the distribution of
the property; no human being will own