The record-union., 1896-01-18
AN INTERESTING DECISION.
Contest Of Annie TyIefS Wills Settled by
Judge johnson.
He Decides That Both Wills Are Good.
But Admits the Latest One
to Probate.

Superior Judge Johnson rendered a
decision yesterday in the Anna Tyler
will contest which is considered by the
lawyers of this city as being a very inn
portant one in regard to a number of
similar cases.
Emma e. Rose petitioned for the pro-
bate Of the deceased's will, which was
| objected to by Prudence McFadyen and
Francis w. Hamilton, daughter and
son, respectively, of the deceased, on
the ground that Mrs. Tyler executed a
Will long subsequent in date to the one
mentioned in Emma E. Roses petit
t1on, which the contestants also claimed
was not executed according to law
Mrs. Tyler died in January, 1891, and
left an estate valued at $4,000. In his
decision Judge Johnson, in part, says:
Two instruments are presented to
the court purporting to be the wills of
deceased. One is dated June q,
1882. It is established beyond all
doubt that this instrument is wholly
written, signed and dated in the hand
writing of the deceased, and in every
respect fills the requirements of the
statutes in regard to Geographic Wills
The other is without date, but upon it's
| face shows that it was signed and wit
messed as required by statute. It has
no attesting clause, but at the end of
the instrument these words are used:
In witness whereof I have hereunto set
my hand and seal in the presence of
John Heard and -, who I request to
| sign their names hereto as subscribing
witnesses
1T is alleged that this latter docu-
ment was not signed, executed and
acknowledged according to the provis-
lens of Section 1916, Civil Code, which
are as follows: Every will, other than
nuncupative will, must be in writing;
and every will, other than an olograhpic
will and nuncupative will must be ex-
ecuted and attested as follows: 1t
must be subscribed at the end thereof
| by the testator himself, or some person
in his presence, and by his direction
must subscribe his name thereto; the
| subscription must be made in the pres
ence of the attesting witnesses or be ac-
knowledged by the testator to them to
| have been made by him or by his au-
thority. The testator must at the time of
| subscribing or acknowledging the
same declare to the attesting witnesses
that the instrument is his will; there
must be two attesting witnesses, each
ness at the end of the WILL at the tes-
tator's request and in his presence.
| "At the time of the alleged execution
OF this will there were present the de-
ceased, who was then the wife of Mark
Foster; Mark Foster; their adopted
daughter, then a child of tender years,
who is the principal beneficiary under
the will; John Heard, a lawyer at the
time of long standing in our city, and at
one time under the former Constitu-
ton, County Judge of this county, and
Fred 3. Berger, at that time an en-
gineer at the City Water Works Ber-
ger and Heard are the attesting wit
nesses to the will. Unfortunately
those present at the time are dead ex-
| cept Berger and the little girl. The
| latter is now grown to womanhood, but
does not remember anything of the
transaction. So, practically, Bergeri is the
only living witness. Were he too dead
there would be no difficulty in solving
the question. The signature of the
deceased, Of Judge Heard and of Ber-
ger are established beyond doubt; in
| fact, it was shown that the will itself
is in the handwriting of Heard. Berger
| from his appearance on the stand is
one Of those persons that seem. to have
but little power to concentrate his
mind upon a subject; has a treacherous
and defective memory, and while he
may be and doubtless is a skilled me-
chanic, he is a very poor witness While
he is what is termed bad witness, 1t
| is not from any willfulness on his part,
for the court is well satisfied that he
did his best to give the truth so far as
he could but from the fact of his de-
fective memory he did but little to en-
| tighten us upon the subject.
1T seems that he and Foster at the
time referred to in 1883, were employed
as engineers in the Water Works that
| Foster lived on Front street, few
hundred feet away from the works;
that Foster came to him to go over to
| his house and witness a will that he was
making for his little girl. This led the
witness to believe that Foster was going
to make a will. He went with him
When they arrived they found Judge
Heard, Mrs. Foster and the little girl in
the room. He says he remained from
three to five minutes and what followed
took place in that time That when he
got there Judge Heard was sitting at a
table writing; that he saw the Judge
write something; that the Judge got up;
AS to what else took place so far as
relates to the instrument and its execu-
tion his mind is a perfect blank He
remembers that Foster put his finger
on the little girl and said, this is all
for you That after he had signed the
| will Mrs. Foster brought in some lemon
| ade for them to drink, and he immedi-
ately withdrew. He does not remember
any language used, and all that he re-
members, except that when he first
went in, was that she said how do you
| do He says that he does not remem-
| ber the exact words that she did say.
| He says, however, that they commenced
to read the will but before it's perusaI
was finished they abandoned it's read
ing.
by reference to the will the name of
Anna Foster as the testatrix appears
upon the second and third lines So if
he had had ears he would have under
stood that Mrs. Foster and not Mr.
Foster was making a will.
| In this matter this case is in this
condition. We have will that upon its
face bears the marks of a perfect exc
eution. All the signatures are genuine,
the testatrix of a proper age, of sound
| and diSposing mind, not under duress
all the parties who were of age sufff-
cient to remember dead, except one, he
one of the subscribing witnesses, and
| his mind a blank as to all the matters
of fact respecting its execution.
Counsel for contestants contend that
the burden is upon the proponents to
trI,. 4te,< Ill r4SrI