The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-03-23
In the Contest of the Will of Mrs
Rice.
THE PRELIMINARY SKlRMlSH BEGUN.
Gives Promise of II Long Hnd Tedious
COntcst-Mrs. Rtcc's Mental Com
dition an Issue.

| thc PiuttSl against auinittlnS lne lnStru-
ment to probate. is now occupying he at
tention Of the county court, Hon. w. N.
Shaw, county judge, presiding. The ap
! plication is made by o. T. Holt, named
| in the VIII us executor and he is repre-
sented by Hutcheson, Campbell 4 Sears.
The instrument sought to be probatei
bears date OF June |. 1896. The contest is
being made by William NJ. Rice through
his attorneys, Baker, Bolts. Baker a.
Lovett and Jones & Garnett.
The case was called yesterday morning,
a large number being present A great
many attorneys are interested auditors of
the case, the questions of law presented be-
| ing of considerable interest. The case is
being slowly heard, the proceeding is very
slow and there will be probably two weeks
| OF time consumed.
Contestant Rice yesterday morning filed
an amended original answer in which he
alleged that his domicile is in the State of
New York and that the probate court of
Harris county is without jurisdiction in
the case. to which Proponent Holt de-
INJURED, saying sufficient property and per-
sons involved are within the Jurisdiction
of this court to give jurisdiction. The con-
testant excepted to this ruling In this
formal allegation of domcile the confess
tant sought to transfer the case to the
Federal court.
proponents demurrer to so much OF
Contestant Rice's allegations In the first
amended original answer filed yesterday
as sets up that "ThatsIhs.sia last will and
testament was never executed by her I'M
dor fha fir
and solemnties required by law nor was
the same ever executed by the said Eliza
beth Il. Rice under such circumstances
and in such manner as to entitle the same
TO probate as the last will and testament
oil decedent' was sustained as pleading
conclusions of law and wanting in par
tlcularty as to a statement OF the facts on
which said conclusions are based
AT This stage of the proceeding L. L
Turner. who is an applicant for the pro-
bate Of an instrument purporting TO be the
last will and testament which bears date
previous to June L. 1896. asked leave to
with iraw his application without preju-
dice. Ii the Holt application is granted by
the court the Turner application falls, and
this withdrawal is TO simplify matters.
Court took recess at noon until 8
o'clock.
AFTERNOON SESSION.
When the hearing was resumed at 81
O'Clock, Colonel Hutchinson presented GER
tan exceptions Of the proponents to depos-
tions of DR.. r. NJ. Wigginton. submitted
by the contestant. which dispositions are
in effect TO show the inability OF the de-
ceased to make will. One answer OBJ
jected to was; II should say Mrs. Rice was
not competent to make Will disposinS OF
her property during the entire the | at
tended her from June II, 1896. up to the
date OF her death, on account OF paralysis
of the brain.
MIR. Hutchinson argued that this was r
relevant as the period referred TO includes
only that portion OF time from June IL,
1886, TO the day OF her death, when, in
fact. the Will in contest was made June /.
1896. and further the supreme court had
held that a question regarding mental ca
pacity was incompetent. In support OF his
objection he read the decision OF the SUI
preme court Brown vs.. Mitchell page 3dl.
SSth Texas in which Justice Brown holds
that ii is incompetent for witness TO
give an opinion as TO the capacity Of a
person to make will. He argued that the
mental capacity OF a person to make will
~ d question of law and physician is not
u competent witness.
He presented objections to answers of
Clara Sohanner to :nterrogltories pro-
boundkd Ny the contestant. Witness had
read the Will in contest and gave an 'l,in-
ion. saying she did not consider Mrs. Rice
capable of making such will. Witness
said the first time she saw the will was in
The Houston Post. while she was at her
home in Millheim aud she was very much
astonished when she read II.
Direction was next made to answer of
James Converse regarding his opinion as TO
whether the testatrix had sufficient mental
capacity to make such a will on June /,
1876.
objection was made TO an answer ty r.
ID. Bowen. who stated that Ii Mrs. Rice
was in the same mental condition when
she made the Will as she was the day lie
saw her, she could not in his opiaion, have
understood single paragraph OF the will,
a copy'of which was submit I'd to witness.
The objections al the prepayment, ex-
planned by Captain Hutcheson, did not OBJ
tain in regard TO the answers of witnesses
regarding Mrs. Ricc's actions. or as 10 the
condition Of the mind of the testatrx. He
quoted the decision of the supreme court.
which sad that ii a physician should be
allowed to give in testimony his opinion as
to nerson's mental capacity to make a
last viii and testament 1t would be grant
ms to an expert privilege not allowed the
hnest LAWYER in the land. 1t is question
OF Jaw as to what is a proper instrument
of the kind.
Judge Garnett replied to the argument
oil CAPTAIN Hutchinson. In regard to the
answer of DR.. Wigginton. Judge Garuett
said the objection is to the legal opinion
OF the witness. The supreme court has held
from the 9Th Texas down to the SSth Texas
that such testimony was admissible.
Ordinarily the last decision of the
court OF last resort is TO be followed. but
with such Il decision by Judge Brown after
so many decisions to the contrary how do
we know that another decision will reverse
Judge Brown and say he had made a blum
der. Your honor may desire to follow the
last decision. If you do, that will not ex-
clude the answer Of DR.. Wigginton. the
lat'er part OF which says that the mind OF
me testatriN was In demented state from
Iune IL. 1896, until the day of her death |
he read the deposition of DR.. Wigginton
10 show that period OF time, including no
iate OF the Will. is covered by the tesu-
mony' the deponent saying that the con-
iitlon in which Mrs. Rice's mind was when
No hrst attended her, June IL, 1896. such as |
comes on gradually. aud that the mind |