The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1894-02-05
Tho Reilly Will Case Opened Up
Again Saturday.
CASE ARGUED BEFORE THE JUDGE.
For tho Proponcntsortho VIII, Judge
Melvin Made tho Areumcnt-Nlr.
Hubbard, Tor tho Contestants, Ito.
pIiod-JudGc Campbell Takes tho
Matter undcr Aforementioned
In the Case.

IL" N'eSu''tVh WIS upeHcu W ~
o'clock by Judge Thaycr Mclviu for tn Q
proponents OF tho will. Judge Melvin
objected to all OF tho instructions 10 tho
jury offered by tho contestants with tho
exception OF No. 8, aud no clnimod that
tho verdict was not warranted BY tho
evidence. As to tho first instruction
which is to tho effect that tho propon-
Onts must provo that tho deceased was
OF sound mind whom no executed tho
will, the Judge thought It not right ne /.
docs not set forth that the burden OF
proof rs to insanity il OH the contest
ants. As to the fourth instruction the
speaker objected to tho word Illegal"
Another objection was mndo to tho
words, "and 10 controlling effect Is to
be given to tho testimony OF the cub.
scrihing witnesses" Read In connec.
ton with another instruction it was
confusing to tho JUROR.
AS TO tho instructions Of the contest
ants regarding insane lelusiou, he took
the stand that the character OF tho deIu.
sion had not beou set forth, leaving tho
jury lreu 10 construct any i'll feeling OF
Mr.. Reilly for his children us u delu.
sion. lEo held that there was no cyi.
denCo to warrant any such instruction.
Passing to tho other instructions he
held that the burden Of the proof rs to
Insanity Is on tho contestants.
1to held that tho eleventh instruction
was confusing to evon m attorney. II
instructs tho Jury to Inquire as to undue
Influence before the will was made !:
this was not applicable to tho case. He
noSt took up instruction No. ~, which
ia as follows:
Tho, Jury arc instructed that II they be.
llcye from tho evidence That the said John r
sullivan wRs tho priest or spiritAi advisor of tho
sAld Slichaci Reilly. and that he had opportunity
Tor the exercise OF undue influence and that nd
nbM!Hs personal aud substantial benefit under
mo paper writing In question TO tho exclusion
OF tho heirs aud natural objects OF tho bounty az
said Michael Reilly, then Ii Is Tor the hurry to saw
from all the facts md circumstances OF tho cNse
whether or not undue intlucnca WIS Cxcrted by
said J. I. Sullivan OH the mind OF said MIchHrI
Reilly which operated upon Ind controlled his
mind Mt tho time OF the execution OF said paper
writing" - :.
Judge Melviu said that this instruc.
w hi. otV ~ p.ooos'siois "hicn
~ ,iono;:, $50 c,,l, nv eIsc ne o2leeteu
for mention. tIo said that legally
Father Sullivan took no part In tho con-
struction oil the will, wns not a legatee
aud did not receive bounty to tho ex-
clusion OF tho hoirs. The speaker cited
cases in support of his view. Conclud-
w." 9rr mu 9ai hn Ii ."e 1e1olcs was not
, w.. !. . ~ ino eyiuence gwen, ana
S Snas ~ ""S "'i'''y contrary 10 the evi-
ooHe''
Nh. HUTCHINSON REPLIES.
Hon. John A. Hutchinson, OF Park
ershnro nj counsal for tho co,,,,,,.t.
..o,,;oI ). 49,. ~. '''".' 70
'opt'eo w ouuso -icl'iu. MS claim
was that the burden OF proof MS to tes-
tamentary capacity was upon tho pro-
ponents. In support OF this view he
cited from number OF authorities,
ana insisted that the proposition is
this: Us this the will OF Michael
Reli!yT and that tho burden to prove
te9tamentary capacity is wholly upon
the proponents. Referring to Judge
Melvln's objection to the fourth in
structIon he said 1t was not to be read
by lt:clf, but they were to BIO read to-
Gether. The instructions for and
agalnat the will were not to be taken as
hostile to each other, but were to repre-
sent the courts condensation OF the evil
dence. As to another objection he said
1t would be impossible to particularize
as to exactly whnt delusiontho old gem
tleman was suffering. Hc considered
the sixth instruction which related to
this matter very clear. He maintained
that tho evidence and the verdict we're
IN harmony.
Regarding the objection to the
eleventh instruction no cited several
cases from New York. Regarding tho
twelfth instruction he said tho original
ono went good deal further than the
one allowed by the court. lie consid.
cred tho instruction allowed entirely
proper, and that 1t did not>injure the
proponents. 1t only calls tho attention
OF the jury to the rotations that existed
between the testator and Father Sulli.
van. Judge Melvin had said that the
trustee does not benefit to the exclusion
OF the children, but the speaker held
different view-the estate Is entailcd
upon them in fec for three, or four gem
erations, and during that time they have
entire control of it. Concluding, Mr..
Hutchinson said the instructions should
not be lnolested.
Mr.. W. P. Hubbard followed for the
contestants. In opening he said TINT
NIL the questions had been fully con-
sidered and passed upon during tho
trial, and that higher tribunal having
final jurisdiction, should be allowed 70
pass upon the objections. EIe hold that
the burden Of allowing mental capacity
is wholly npon the proponents Of tho
will. Ile commented on the fnct that
witnesses for tho Drononnnts bod tosE