The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1897-03-05
ROMANCE OF A WILL
The Smith Case a Cause
Celebre of New Jer-
sey and America.
NINE YEARS in COURT
Final Decision Gives the Con-
gressman's Estate to His De-
serted Wifesand Child
rem.

Appeals, at Trenton. IN favor of Heze-
kiah B. Smiths wife and children. lies.
says the Newark nAdvsrtiser," an gem
uine a romance as ever cropped out amid
the dry technicalities of The courts of law.
The vigor and ~pertinacity with which the
case has been fought OH both sides. and
the eminence of counsel, as well as the
story Of Smiths life. and that of his de-
serted wife and children. make it worthy
of figuring among the causes celebres of
New Jersey and America.
The case has been fought since 1888.
The decision. though in form not set
ting aside Smiths viii. in fact does so.
1t declares the so-calle6 charitable trusts
contained in 1T to be void. There is moth
ing in the will but that. excepting the
appointment of executors.
Smith was a machindst. In early life
he married. lived with his wife for sev-
eral years, their residence being at
Woodstock. VT. and had by her five
children. Getting well off, and harmed
by a younger woman, he left his family
behind. came to this State, bringing his
paramour along. and, introducing her as
his wife. bought a fine water power near
Mount Holly and founded the thriving
village of Smithville.
Everything prospered with him, and his
woman companion helped him to Ne
popular. Evidently she was a superior
person., beyond him in education n
much beyond him in culture. He. was
passiorlately attached to her and she in
fuenced him completely. There stood in
the yard of their dwelling at Smfthville-
it probably remains there stil-a rude
statue intended to resemble her, obtained
by him after her death, in Italy.
And during her life he made wills in
each of which he gave her every dollar
he possessed. When she died he was
frantic. The school scheme of the con-
tested will made after her death, was
mainly hers.
He was in Congress WI years and she
was In Washington with him. He was in
the Senate of the State, too, and it was
his ambition to be Governdr.
One or two rutnors reached Mount
Holly that he. had d wife and family
there. They were denied and his mistress
helped him put them down by publica-
tions In the newspapers.
Some two or three years after her death,
he made the contested will. He appoint
ed nine trustees, who were also execu-
tors, and left his whole property, estiunat-
ed at that tim to be worth half a million
of dollars, to these trustees, the who'll to
be held in trust by them for the follow
ing object:
II desire THAI my entire estate with it's
acculnulatfons shall be used in establish
ing and conducting q school for appren-
tices and young mechanics on plans to be
hereafter described by me, in case OF
my death before perfecting said plans, the
school above named is to be conducted
ON plans which / nav from time to time
described to most of the board of trustees
herein named, and who shall approve of
practical plans in keeping herewith"
The eldest son of the testator lives in
Savannah. Hearing through the news
papers, of the death Of his father, Mr..
O'Beirne, a lawyer of that city, was com
suited by him. He was recommended by
a mutual friend to Cortlandt Parker, of
this city. He came here and conferred
with him. By his suggestion another law
yer living in or near Mount Holly, the
present Judge Gaskill, was appointed with
him.
A Vernon lawyer, Mr.. johnson, of
Woodstock, was also employed, and so.
in 1888, the fight began.
The first thing to DO was to prove the
claimants to be Smiths wife and chill
dren. For this purpose Mrs. Smith sued
for dover in a part of Smiths lands.
After a heated contest, a jury found that
she was his wife. The case was taken
ii d In this litigation the trustees
were represented by the late distinguished
Barker Gummere.
This DONE. the probate of the will was
contested, and a jury vas obtained on
the issue whether or not the paper was
his will, the exact issue being whether
it was not the result of an insane de-
fusion which many witnesses imputed to
the man, that the children of his wife
were not his.
. ~. -
The jury, struck, and composed of the
best citizens of Burlington county, found
for the plaintiffs on this issue, and had
their verdict stood the will was broken.
But the trustees carried the case to
verdict of a jury established nothing.
The Chancellor takes the verdict and the
evidence, and makes up his own mind
without regarding the verdict. He did so
in this case, and, in a very able opin-
ion, reviewed the evidence upon which
the jury found their verdict, and ordered
probate of the will, the verdict notwith-
standing.
proceedings, Samuel Fl. Grey, Just APP
pointed Attorney General, assisted Mr..
Gaskill and Mr.. Parker. Mr.. Sooy, an
able lawyer, of Mount Holly, who had
been with Mr.. Gunlmere in the litigation
first described, was aided by the late
Chancellor Runyon in defence of the will.
From this decision Of the Chancellor
the Smith family appealed to the Court
u l. H. ILIIOIC tlC III OLAllS cSpEOd1SA
again there, on both sides. The Court
of Errors affirmed the judgment of he
Chancellor, and the will was proved.
Then the Smith family filed their bill in
Chancery, and attacked the legality of
the bequest creating the trust. They in.
sisted that the will was indefinite and
uncertain; that Smith designed a certain
plan on which the school he projected
was to be carried out, and that this was
not expressed in the instrument as the
law required, but was to be gathered
from what he might say or had said to
most of his trustees, whose approval of
these oral plans was also required-that
the will was void for uncertainty and un-
lawful-no court could execute it, that
it really gave a owe to the majority
of the trustees to make a will for the
~testator; that the bequest created no
charity, the school was not for poor APP
prentices or young mechanics, nor were
the scholars to be educated and support
ed gratis; that the plan Swallowed out
was really the procuring of cheap labor
for Smiths works, then carried on by a
corporation of which he owned a majority
of the stock; that the bequest was not
within the statute and law regulating
charities, and therefore was void.
The Chancellor. after hearing Mr.. Sooy
for the alleged charitable trust, and
Messrs. Parker, Grey and Gaski1l against
it, and after holding it for a long time
under consideration. decided that the
trust was void. Therefore the Smith
family inherited.
From this decision the trustees appeal
ed to the Court of Appeals, and now,
after argument hy the same counsel on
each SIDE and after consideration Of the
case for six months or more, the decision
of the Chancellor was affirmed by a vote
of six to five. II is understood that the