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

NNO ] The burden OF tbe PROOF Is On buo piO-
p0nents OF the pap-r writing IA question 20
Drnye bv "A remembrance Of evidence tn..t ~
he time Of the execution OF the Will decedent
vas OF sound mind.
Judge Melvin thought ii was not fair 10
prOpOuents. principally because IL dld not
set forth that the burden Of proof was
upon contestants 10 show insanity on the
part Of the testator-
JTpon the instructions relating TO undue
influence, Judge Melvin took strong ground
that IL should not have been given, and
held that the question of influences was not
nroperlv in the case, for the reason that no
notice of the Introduction Of sHch an ele-
meut into the trial had been given propo-
AS 10 instruction No T. setting forth to
the Jury that the question OF whether the
paper writing was the will of Michael
REILLY or not was TO be determined IKE
any other question, in view of all the legal
evidence 10 the case, Judge Melvin
thought the change made from the instruc-
ton as originally submitted had not been
material enough. Tho word 'legaW was
particularly objectionable. The jury was
sworn 10 try the case on the evidence, aud
70 qualify the word "evidence" by the
word legal" was going too far in an i'm
proper direction. He also objected to the
sentence;
"And no controlling effect is :" Re given 10
t.e tesumony Of subscribing witnesses"
Read in conner ION with the instruction
for ro~Juents mat the testimony Of such
= ssses twas entitled to peculiar weight"
made il confusing 10 Jurors. The lnsJruc-
! lions for contestants should have been mod
| flied
Taking up the instructions for contest
ants upon the question oil insane deluSlOns
on the part Of the testator, Judge Melvin
critized them in detail. One leading 90
lection was that the character OF the delu-
sion had not been set forth, but instead OF
doing thai the Court had left the jury free
! 10 select any prejudice, or kindred feeling
on the part of Mr. Reilly towards
| his children and call it de-
fusion. Going further than that,
ne would say there was no evidence TO
warrant any instruction at al on the ques-
ton of delusion. There was no evidence
| to show even a prejudice or an aversion
against all OF his children, much less an
/ insane delusion. While the evidence may
have shown an aversion or prejudice TO
| one or twokof the children, yet the evil
| dence did not warrant an instruction on
/ insane delusiOn. Courts had held that the
! opinion of non-eXpert witnesses gwen as
/ testimony on the sanity Of the testator and
/ formed from trivial happe nings should not
admissible in evidence. Passing TO tue
| tenth instruction:
| mo 10 II the Jury ind from the evidence
| that the mind OF the testator was effected by
/ An insane delusiou which operated so as TO
| cause him 20 epel his children and 10 treat
! them harShly. unreaSonably and uuluStly; and.
III they fur her lind from the evidence tcRt this
! insane delusion existed Ia the mind OF the tes-
/ tator prior 20 the execution OF said paper
/ writing, chen the burden OF proof is upon the
/ prof. S9eutS TO establish by p:eponderance or
] evidence that SAID deluS'Oh dld not operate
| sud had NO effect ia tG" mlut OF Mlrhasl
/ Reilly at the time SAID lSper writing was
| mace
judge Nsl,'r 'tote1 quite an amount
/ "a lime 20 his objections, noiJ NJ, among
| other things that the bu,len o. proof IS to
I insanity was upon the contestants, as they
| had alleged IT,
AS to instruction No. H.
"No II. The Jury R-e Instructed that while
| the bt rden o proof /, upon the contestants OF
/ proving hat said payer wtilng IN question
| was ccured by th. exercise OF undue lnnu-
| euce ope ating upon the mind OF Michael
| Reilly a the time OF the execution or SAID pa
per writing, yet the inquiry Is not merely
whether undue influence was eXert-d at the
time or the execution or said paper writing.
but whether undue lnnu nee had been acquired
| OF the mind OF SAID Reilly waich operated up
on him az the time OF executing said paper
in tne disposition o his property"
He held it was confusing, even to an at
torney. The question in the case was
whether undue influence operated on the
mind of Miceael Reilly al the time the
paper writing was made. The instruction
directed the Jury as 10 inquiry as to undue
influence acquired before the will was
made. Judge Melvin thought this was lot
applicable 20 this case.
AS 10 No. r.
''No. u. The jury are instructed that II they
believe from the evidence thst he said John I.
sullivan was tn prizes. or Spi ltuaI ADVISOR OF
the said Michael Reilly, and that hc had oppor-
tuuirv Tor The exercise OF undue influence. and
that he o0ta rs personal and substantial O-u-
eft under the paper writing IN question to the
exclusion OF the heirs aud natural objects OF
the bounty OF said Michael Reilly, thea 1t IS
Tor the Jury 10 say f;om sll the facts and cir
cumst luc.s OF the case whether or not undue
influence was exercised by said J. 4. Sullivan
on the mind o. said Michael Reilly which oper-
ated upon and controlled his mind at ne slime
Of the execution OF said paper writing"
Judge Melvin asserted it contained no
less than three propositions which were
wholly out Of the case. A main objection
was that Mgr. J. T. Sullivan had been
singled out for indi vidual mention. The
Supreme Court had instructed that no in
ference should De drawn from opportunity.
In legal sense John I. Sullivan took no
interest in the will, was not legatee and
did not get any bounty 70 the exclusion Of
the heirs. \ ct this feature OF the case
was held up 10 the Jury improperly by the
Court Cases were cited 10 support this
view Of the case. In closing Judge Melvin
said the verdict was not warranted
by the evidence The testimony Of the
subscribing witnesses, the declaration OF
the testatOr as TO his intention 10 make
will and the transaction Of business out
weigh al other evidence in regard to testi-
mony concerning drowsiness and tempo
rary weakness OF mind. He thought tina
verdict was clearly contrary TO the evil
denee.
Mr.. HUTCHINsON's ARGUMENT.
Mr.. Hutchinson replied. at the opening
of the afternoon session, TO the arguments
Of Judge Melvin, one of his first PROPOSE
tions being that the burden OF testimentary
capacity throughout was upon the pro-
ponents, and ne cited from Nicholas V.
Kirchner, 20 W. Va. 260-26l. McMechen V.
McMechen, aud other authorities, and
after dwelling at length upon the details
of his proposition, embracing ia it some
criticism of the sixteenth instruction OF
the Court for proponents. he finally in
sisted that throughout the entire case,
upon the proposition: Is this the will Of
Michoel Reilly. the burden was wholly
upon the proponents, TO show capacity,
but if undue influence came into the case,
either by plea or development In the course
Of the trial, then the burden as TO that was
UPON contestants.
The next point taken up was Judge Mel
vi Is objection TO the fourth instruction by
the Court as 70 the weight to be given the