Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1894-02-04

were not to be taken as hostile 10 eacn
other. but as whole they represented Jne
Courts condensation of the principles Oh
law governing the particular case on trial.
Upon the next objection by Judge Mel-
vim. that contestants should have partlcu'
larized the delusion il was alleged Mr..
Reilly was suffering from, Mr.. Hutchinson
said it would be impossible TO set forth
explicitly and particularly what delusion
man was suffering under. The evidence OF
q delusion might be clear and unmistaka-
Gle, out the delusion itself hard to define.
He thought the sixth Instruction, re-
latinR TO this matter. q clear and
concise statement. Mr.. Hutchinson
dwell at length upon delusions and the dif-
fering topics of mistaken ideas" "er'
rors,n ''preiudices," etc., and concluded,
after an examination OF authorities, that
the instructions and the evidence were IN
harmony, and that the criticism OF counsel
upon the other side was without proper
foundation, there having been no testimony
showing any cause for animosity, hostill-
tv. bias or delusion on the part OF the tesla
tor towards his children. His judgment
as TO his children was based upon imagin-
ary things, and not upon facts. and he was,
therefore. deluded. Mr.. Hutchinson was
exhaustive in pointing out the distinction
between decisions and mental perverslons,
based upon facts of more or less import
ance, and referred 10 considerable num-
Der of cases as he proceeded.
Upon the point of the opinion OF wit
nesses as to the capacity of teStator, Mr..
Hutchinson cited from Caldwell v. Ander-
son. lO4 Pa, and said the rule was settled
in Virginia and West Virginia that II there
was any evidence in the case upon mate
rial point, it was the duty of the Court TO
give an instruction, as has been done in
this case. from Nos. 8 to g. The objection
of the other side was not as to the language
of the instructions but TO the doc
trne laid down, and referring TO
this, Mr.. Hutchinson cited the
evidence of O'Neill and others. and held
that the matters testified to were properly
for the Jury, and the instructions were
simply TO define TO the Jury what sorts of
mental authorizations would be sufficient TO
set aside the will The whole point Of this
particular objection was INSTRUMENTATION TO
the Jury. and upon that he took issue and
held the instructions OF the Court were
proper and right. II there was any evil
dence tending 10 establish fact, then the
inrv was TO be the Judge, and if forty-hve
witnesses had testified that Michael Reil-
>ly's head was as clear as a bell, and three
had said his intellect was cloudy, and the
Jury had found on the side of the three,
the Court could not set IL aside.
He then passed 10 the objection OF Judge
Melvin TO the eleventh instruction, relat-
ing to undue influence, and in support OF
the instruction he cited Tyler v. Davidson,
80 n Y, 594 sos. (
The objection TO the twelfth instruction
was then taken up and he said tie Instruc-
tiop originally preferred went good
deal farther than tho one al
lowed He thought the instruc-
tion allowed was entirely legitimate and
did not hurt the proponents II only point
ing out the relationship OF John L. Sullivan
to the testator and calling the attention OF
the jury 10 1t. Judge Melvin held the
benefits accrung to the executor did not
amount to an interest to the exclusion OF
tue natural objects of his bounty but
Mr.. Hutchinson differed very radically
and held that full management OF the
estate, conferred as fully upon the eXecu-
tors as IL had been vested in the teStator,
amounted TO q full benefit. THE estate is
entaled upon them, in fee, for three or
! four generations; they have the right TO
buy ana sell and convey, just as Mr.. Reilly
| had; they could obtain credit, by having
control OF six or eight hundred thousand
! dollars, for purposes outside OF the Will, and
! If that does not amount to benefit then
/ do not understand the meaning of words. y
| He thought nothing just like the Reilly
! Sc would be found in any OF the books.
| IL stood alone in many of 1t phases, and
! the Court could not limit the jury IN It's
! Judgment upon the matter of benefits. The
I Jury wa to determine whether there was
| not a substantial benefit to the executors
under the will, and they had, in his
opinion, Justly and legally exercised that
right
Concluding, Mr. Hutchinson thought the
| =. ba Not n &
and ought not TO be molested.
MR.. HUBBARD's ADDRESS.
Mr.. Hubbard began his remarks by say.
ing all the questions entering into the case
had been fully looked into, argued and
passed upon in the trial, and ought to be
allowed TO stand, and let higher tribunal,
having final jurisdiction, pass upon the
questions raised by the other side. There
should be no new trial in the Court he ad
dressed, for obvious reasons, and gentle
men on the other side, having really sug
gested nothing new, ought to go up at once
rather than ask renewal here. Referring
TO the criticisms of the other side as a
whole, Mr. Hubbard said be thought the
| instructions given were singularly free
from even trihing errors, and commended
themselves TO good Judgment.
He then took up the question OF the bur-
den of proof as to capacity, and said ne did
the objection raised on the other side no
iujusticeswhen be said it amounted 10 say
ing that the burden OF proof was upon pro-
| ponents 10 say testatOrs mind was sound,
! but the burden was also upon contestants
TO Show il was not quite sound, and 1t fol
lowed that this was somewhat ridiculous
| Mr. Hubbard held that the burden OF show
ing mental capacity was upon the propon
| ents fully and wholly, and remained witt
them throughout the trial, and when they
had attempted TO show mental capacity by
such witnesses Of their own as Col
! O'Brien, Mr.. Rogers and Mr. O'Neill, Il
and behold these same witnesses, who haC
testified generally that Mir. Reilly wa!
mentally sound, said with great force aDC
effect that upon the question of his child
rem his mind was perverted, that it was
| ''Off'' and that he was mentally deluded,
and that his mind was dominated by sin
! Gle foolish and unwarranted idea, amount
! Ing to mental perversion aud delusion, and
| this was from proponents own witnesses
| UpOn the objections by counsel for prODo
nents as 10 allegations, Mr. Hubbard sale
| the jury had nothing in the world TO dC
/ with them and If they had, the next thinl
! for the Jury would be the suficiency of the
allegations. and finally his friend would b(
arguing demurrer TO the jury
AS 10 undue influence, Mr.. Hubbard SAID
there were no issues in tle case Of menta
| capacity, undue influence, or anything else
save the one thing, is this the will of Mi
! chael Rileyi and after the proponents nae
notice In the opening of certain class Of
evidence, and il came in without objection
then the proponents had sinned away their
! day of grace and would be too late with any
plea of insufficient notice.
AS 10 the objection TO instruction No. 4
| be said instructions must presume a jury
has reasonable common sense, and jury
which would sit for weeks and see Cour;
passing upon evidence, must be presumed
| to know what was the legal evidence
| laid before them.
| Al. I,Lbard oddraeea3 bioealF Nth