Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1894-01-17
HON. 7. S. RILEY.
BIS OPENING ARGUMENT IN TIE REILLY
WILL CASE YESTERDAY.
A Speech ot Over Five Hours Dar,foa. En-
eTacing an Exhaustive Review ot tn,
Evidence IN The OAse-He VIII
Resume To-Day.

largo audience assembled bright and
early IN Judge Campbelrs court room yes
terday morning to hear the opening ad.
dress 20 the jury in the Reilly will case by
Hon. 7. =. iticy, OF counsel Tor tho exec.
tors under the will. a number OF ladie.
were present inside tho bar railing, tho
advance OF the larger number who ap-
pearod later in the day.
MIR. Rilcy began his address at q:s5 by
saying.
In "a division Of labor I'm this case IL be-
/ comes my duty TO open tho argument for
| tue proponents OF the will IL is source OF
| Generalization 10 us.al that the end of tho
/ trlal Is approaching He said the tyvelva
men before him had bccu selCctcd from
| the DO " OF the county as entirely un-
| preludlced and wholly M to try tho issue
| before them, and TO this end they had
| taken solemn obligation. IL mAttered
not To the jury or the speaker what Mich
| ael Reilly did with his estate. The oues.
uon was. had hc capacity To dispose OF
! MS estate hv will, and closely connected
| with this proposition was the further
| question,
WHAT CAPACITY Is REQUIRED
TO mako will lie called attention to the
! lh'l That the law required greater capacity
| To mako a dcou than 10 make "a will and
said wills were often made on the sick bed
aud perhaps fully ouohalf OF the wills
made in tho couBtry were made when tho
! testator was cufcehled by illness and the
| memory was gouo to some extout T1pon tho
| question of what capacity was necessary
| 10 make will. Mr.. Riley quoted from SUI
! premc Court decisions, constituting tho law
| IN that regard, and said that from con.
| temptation of what was necessary TO mako
| valid deed, tho Jury might infer TO some
| extent what was required To mako "A law
| tul and binding will.
| The understanding and memory OF n
! man might be enfeblcd. aud he might even
| sometimes act strangely, vet II his mind
| was not gone 10 tho extent that he was Rn
| imoecile, he had capacity TO mako deed
! As TO Will, tho Supreme Court had said
| the teStator might not be able To transact
many OF the ordinary aGairs of life, and
! yet his capacity 10 make will would be
| upheld.
/ After saying he would quote no law
save what he expected the Court To iucorpo.
| rate In AN instruction, Mr.. Riley said tho
| next question the jury should understand
| clearly, IN order 10 determine whether the
| paper before them was a lawful will, was
| 10 know how 10 interpret
| THE PECULIAR soRr or EVIDENCE
| adduced before them
| The supreme Court In Kerr v Iunsford
| said tho evidence OF tho attesting witnesses
| was entitled 10 peculiar weight, aud this
| among other rcaFoug because those wit
nesse9 were close observers OF the LertH-~
] tor aL the tiIQ VI Lie making Of tho will
| observed his state OF mind. etc. attesting
| witncssos wcro not apt 10 bo party 10 a
wrong, ia altO5tiuB 10 a proper will. The
| attcstinR witnesses must understand from
| the testator that he has "A full knowledge
OF what he is doing, and must know that
/ the tcstator rs OF sound and disposing
mind, and that tho will was executed free
I ly aud understandingy. pom this point
| OF the duty of attcstng Witnesses MIR
| Rlley read from Martin V. Thayer, 81
| w. Va
The next matter taken up was the evi-
| dence OF non-eXpert witnesses, who under
| talto TO give opinions upon hearsav or
| based upon little things gathered I'm various
| ways. Courts well knew how TO weigh
| evidence OF this sort Almost any man,
| let him DC however talented and however
able, is susceptible TO being Judged inn
properly by little isolated acts and words
If that class OF evidence is to bo given an
undue prominence, few willis would stand
in this country, because all men have theig
peculiarities and eccentrlcities." n q renA
from the syllabus In Kerr v. L.uusfOrd as
10 the opinions of non-expert witnesses,
and said 10 had been determined the evil
dencc Of such witnesses was worth little
or nothing as against that OF attesting wit
ncssos.
The next matter taken up was as to thG
time 20 be looked ut, In determining
THE CAPACITY or THE TEsrArOR
a
or after tho making Of the will but the
crucial tine, upon which 20 base "A Iudg.
mont, was when Mr.. Reilly, and Mr..
Russell and the venerable Mr. Lamb sat
about the table and executed the instru-
ment."
The next matter taken up for cOnsidera-
tiou was tho bearing business transactions
before and after the making Of the will,
had upon his mental capacity at the time
Of making IL. and from this tho speaker
passed 70 the guarantee OF tho law that q
man might dispose OF his property as he
nj ght sec H.. "This is "a right guaranteed
20 every man, and IL i8 not necessary, 10
mako n valid will, that an the children
must be named, or something given % oach
There is popular idea that for will 10
stand, something must be- given 10 each
child. This is wholly erroneous a tes-
tatOr can give all his property 20 one child
or % IA stranger. Tho sole question IS that
OF mental capacity 20 make u will, and
that capacity measured by the rules have
laid down There might be- feeling Of
resentment towards ono or all OF his
children. and that resentment might even
De based upon a false state Of facts. STILL
that would not invalidato n will II tbe
mental capacity was present. II Mr..
Reilly had the mental capacity,
~ HAD THE RicHr
% make an unjust, an unequal and an uo-
reasonable WliIn He said that was
question before tho jury. but when Ha
came 90 consider that question. ho "WOu
say that that will had been misrepreser
ed on the streets, iu the press aud on This
GoOr and ! think when ] have set for.1
the facts, TO- will be- concluded that tUs
will is not as un. Just as 10 has becn reported
% be-"
Mr. Reilly was not man who did thiuf
iu haste or in secret. All his transaction
in the city from % boy we're open and above
board, and without fear or favor from am.
one. Mr. Reilly had one son who stuck f1
niu through thick and thin. While bro his
disaRreeable moments ho might quarrr
with him, or invciRh against his busine,1
capacity. not one word was ever saI
against the integrity " bis son Thomae
lie believed in his son as in himself ami
while that son was living he had made
will making a different disposition C'
his property. But towards the close &.
his life different set or cir
cunstauces we're presented 10 him, by the
death Of Thomas, aud aIi the events went
% show that Thomas was the only son in
whom he placed any confidence Aftor the
death Of his son Thomas, he called in cone
sultatiou Judge Jas T. Rogers man In
whose confidence he had been aIl his life,
aud bv whose gdvice be had been guided,
g. D. s..H.a. IA IaaHnF