The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-03-24

Failure of Mrs. McDonald's Last Appeal
in the NOblesville Court
Supplemental Motion for New Trial and At
tempt 10 Probate the True Will Fail, the
Case Passing TO the Supreme Court
Special to the Indiap papolis Journal.

Special to the Indian apos Journal
NoBLEsvILLE, Ind, March 23.-Further
steps were taken to-day in the Hamilton
circuit Court in the now celebrated Me-
Donald will case. Theodore p. Haughey,
executor of the will. through his attorney.
Albert j. Beveridge, filed short formal
motion for new trial for the following
reasons:
The verdict of the jury is not supported by
The verdict OF the jury is contrary to law.
The court erred in refusing to require plain
tiffs to elect single theory on which to try said
cause
Mr.. Beveridge was not present, and no
argument was made in support of the mo-
tion. which the court overruled, giving
the defendant exception.
The defendant. Josephine +. Mcdonald,
filed lengthy motion. to which she was
sworn, praying the court to modify and
amend the decree as requested by the
plaintiffs, and to decree that the true last
will and testament of Senator NJ cDonald.
as set out IN the amended complaint, be es-
rablished and admitted to probate. The
motion set out at length certain
statements attributed to MIR. Winter
in his argument of the case before the jury.
"A
ton by Mr.. Fishback. Mr.. Winter said he
denied most positively having used the
language attri buted to him, and challenged
the production of an affidavit by any re-
porter showing be used such language.
Mr.. FishDack argued that inasmuch as
the plaintiffs had set out the term of the
lost OF destroyed will in their
complaint, and the verdict being
for the plaintiffs the effect OF the
verdict was to establish the true will.
a
will be presumed TO have been litigsteu"
under the issues and any action by the de-
fendant to establish the last will would be
met and barred by o plea of former sdjudi.
cation. The case will not be ad indicated
piecemeal i'll the different courts OF the
State.
In his closing remarks Mr.. Fish back said:
lis there anything very inviting to Mrs.
Mcdonald to come back here In this atmos-
phere. where she must stay should the case
be reversed In the Supreme Court, and
again litiRate this casef 1t may be that
rather than again pass through this ordeal
dict. unjust as it may be. 1 say that Mrs.
Mcdonald is the victim in this litigation
of undue prejudice"
MIR. Cropsey. for the plaintiffs. argued
that the complaint does not seek to eStab-
lish the last will, but it was the recital of
not the true will of Senator Mcdonald.
He did not believe the evidence b ad been,
or ever could be, adduced that would au-
thorize this or any other court to establish
the last will There is one essential fact
missing" said he. land that is the ex-
istence of the will. which can never be
supplied. If they have proper person
who is interested and cares to bring q suit
to establish the last will. there Is nothing
that would preclude them from maintain
ing that action"
Mr.. Winter argued that be still ad-
hered to his opinion that evidence lad been
introduced. and the complaint sworn 10,
containing admissions which are amplv
sufficient to establish the last will. What
he wanted was for Mrs. Mcdonald. or Mr..
Haughey. the executor of the will. to 90
into the Marion Circuit Court, which is O
court OF competent Jurisdiction, and estab-
lish the last will. This court be says. has
not jurisdiction to establish the last
will. and Jurisdiction of the sub
Ject matter cannot be conferred
on the court even by argument.
that will stop the defendant IN the Su.
preme Court or elsewhere from proceeding
TO establish the last will. Ho contended
that the Jurisdiction to establish the last
will is vested exclusively in that court in
which the will 10 properly entitled to he
admitted TO probate Long before this
case got into court, he said. it was q cues
tion of most serious consideration by
SI"nis, TSssS.r tor or nos ss' .sg aoud ,s to
go into a court of common law Jurisdiction
to eastablish the last VIII until they had
first got rid of the probated will by
proper action in the Probate Court. There
was no such thing as mingling or the
jurisdiction.
Mr.. Harris argued the various questions
ut some length and at the conclusion
the court overruled the motion to modify
and extend the decree as proposed by the
plaintiffs attorneys. which simply revokes
the contested will and the probate of the
same. The defendant. Josephine +. Mo.
Donald. then nied q supplemental motion
bv the court. The defendants separately
prayed appeal to the Supreme Court. and
the court fixed the appeal bond at $500