Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1893-12-29

have failed TO prove their point "a Is
not a question of whether Michael
Reilly was crazy. but simply as to
whether be had the mental capacity to
make this will. The question for the
Jury TO settle iswhether the mind OF the
testator was sufficient to recollect the
property of which he was possessed Snd
the objects of his bounty. The testator
must have mind and will to do the
act freely. 1t is conceded that he
must have capacity enough to
bring into view his property. II he had
this capacity be did not show it in the
will, in which no single item is referred
to. Judge Melvin says be must have the
capacity to know the objects OF his
bounty. II this testatOr had this
capacity he failed to show it. For
unless the two trustees could be con-
sidered as such the objects OF his
bounty are persons as vet unborn whom
neither he nor any one else has ever
known. II he had the capacity TO
know the manner in which he wished
the disposition of the property made
he did not give evidence Of it, for he
made a will which Judge Melvin him
self with all his knowledge OF the law
was unble to understand. He referred
TO the will itself-unreasonable, unjust
In its provisions and said the man who
could make such a will as this lacks that
mental capacity which the law says
man must have before he can make a
will. Answering the point made by
Judge Melvin that eleven months had
been allowed to pass By the children OF
Mr.. Riley before appealing the case, he
said 1t seemed TO bear more on the pow
ertv Of the heirs than upon their idea of
Mr.. Reilly's mental capacity. The law
allows twelve months 10 which TO make
such an appeal. The fact that one OF
Mr. Reilly's sons had accepted employ
ment under the trustees aud was after
wards discharged by them was but an
example of what might occur under the
will at the pleasure OF the trustees.
Mr.. Reilly closed with the remark that
the propounders must prove Mr.. Reilly
to have been In his right mind, and
said: They can not do it, and falling
to do it your verdict will be that this is
not the true will OF Michael Reilly"
JUDGE MELVIN REPLIES.
Judge Melvin replied to SIR. Hub
bard. he said that be had not intend
ed to make an argument or TO offer any
evidence in has former remarks but
simply TO outline what would be bis
course and what he would attempt TO
show IN the course OF the trial. Mr..
Hubbard has made what is almost an
argument against the validity OF the
will aud has read the will ITSELF which
be (Melyin) had supposed would come
in only as evidence. Referring 10 his
mistake, be said Ia confounding the will
10 question with certain provisions Of
another which he had also on his mind
could not be construed as showing that
the will is unintelligi0ie. He called on
the jury who had heard the will read to
know If they did not understand every
line OF it He wished TO say one word
for the parties for whom he himself,
Mr.. Russell aud Mr.. Riley appear-Rt.
Rev. }. j. Kahn, Rev. j. T.. Sulli-
van, the widow Of Mr.. Reilly and
her daughter Mati' He insisted,
even after interruption by Mr.. Hubbard,
that the will requires the trustees to
provide for the children and grand
child rem OF the testator and read "the
trustees shall from time TO time" etc,
pay to the heirs for the maintenance
and support OF their families "such
sums as they shall deem proper" He
insisted that the instrument was i'm
perative in requiring the trustees TO
make provision for the maintenance and
support OF the heirs and the education
OF the children. Mr.. Hubbard's state
ment that should the trustees misuse or
mlsapply the funds entrusted TO them
there could be no remedy he held was
not correct. The Courts, he said, were
always open to enable any one inter-
ested 10 call the trustees TO account, and
spoke of instances in which 10 had been
done. Mr. Hubbard thought Judge
Melvin was mistaken in the statements
he made. Judge Melvin went on to
show that there was a limit on the
powers Of the trustees expressed In
the will Itself inasmuch as they
were inhibited from investing in
church or educational prop
erty. He denied all recollection
of having set aside the Philip Reilly
will. or that it was set aside by any one.
Mr.. Hubbard said Judge Melvin had
informed him this very day himself
that he had entered the decree.
Judge Melvin said that Mr.. Hubbard
was mistaken about that. There had
been a question of construction Of GER
tain clauses OF the will and that the de-
cree Of the Circuit Court had teen en-
tered by agreement of counsel 10 the
case and without examination OF the
case. The decree, which Mr.. Hubbard
said was as TO the validity OF the Will,
was set aside by the Supreme Court OF
Appeals. He again called attention TO
the fact that eleven months had
elapsed before the appeal
was taken and he wanted TO
know II the allowances by the trustees
I'm that time had been enough 70 allow
them TO enter litigation with. As 10
the execution Of the will Judge Melvin
said be had no fears that any evidence
OF undue influence could be shown. II
was for the propounders OF the will FIRST
TO show that the testatOr was OF sound
mind when he made the will, and then
Introduce the will. II would then be
for the contestants 70 snow, III they
could. any undue influence, and he be-
lieved they could not.
When Judge Melvin concluded the
Court adjourned till this morning at
$3.50 o'clock, when the taking OF testi.
mony will be tegun.
The regular panel Of jurymen has
been excused, but the last two drawn
have been excused only till Monday,
January IS, 1894, at $3.50 a. N.
The REGISTER RELIEF FUND.
S,..t...t,.,- atgrT Con,Tn- In for ths