The herald., 1897-08-09
ODDITIES
OF WILLS
Nice Legal Points in the
Creede Case
THE ALANIZ DUPLICATE
RULES AND REGULATIONS OE
INTERPRETATION
Bequests That Were Either Numerous
or Retalitory-How to Protect
Wills-Jury's Capacity

Within recent years it has seemed as
if legatees under will made by tesla :
tor or testatrix having large interests to
dispose of have considered themselves
under solemn obligation to contest its
validity. No matter how simple and
specifically drawn, will is still chal-
lenged on general principles.
When the document itself bears every
evidence of clear mentality on the part
Of the testator or testatriX. then the ia
vorite ground of contest is invoked and
the incapacity of the decedent and undue
influence are claimed. Generally speak
ing a less effort is made to prove this
true than there is in biasing the mind Of
the jury by the presentation of evidence
tending, by 'implica ton at least, to show
the exceeding wrong and hardship re-
sulting to certain persons if the will is
sustained. AS rule there is no person
who can speak for the decedent and tell
just why some of the legatees were left
a larger slice of property than others, or
why some were cut off with the proyer-
bal shilling. Not infrequently the will
is broken. the wishes of the deceased ig-
nored and the very parties whom he or
she knew, absolutely to be unworthy
revels in luxury on the ard-gotten gains
of someone who must toss restlessly in
his or her grave at such sacrilegious in
justice.
Within the last year or two several
WI Of
tried in the superior court of this coun-
ty, and within the last week, while one
of these has been compromised out of
court another has been inaugurated. In
the case of the contest waged over the
will of the late Conception Alaniz, where
in the jury most Unexpectedly returned
verdict for the contestants, a point of
agreement has been reached and most
likely the suit will disappear fro. the
court calendar.
TWO OF A KIND
That case was exceptional in that the
contestants could not possibly reap any
benefit by the breaking of the will in
dispute, for upon its invalidity being
pronounced, second will made by Mrs.
Alaniz and an exact duplicate of the
other save in one particular, had force.
The only point of difference between the
two wills was in the change of execu-
tors. The deceased lady had changed
her legal adviser, who also was her
agent and for this reason new will was
drawn, for in either will her lawyer was
appointed as executor The mere as
sertion that Mrs. Alaniz was of unsound
mind when either the first or the last
will was made and acknowledged by her
is sufficient to make anyone who knew
her smile. She was not only fully COM
petent but was a shrewd and very keen
business woman and attended to every
detail in connection with her real es-
tate transactions, house building, etc,
as well as the incidental work in con-
nection with the conduct of her home
Unfortunately, however, the court held
that Mr.. Macdonald, her agent, who
knew all the ins and outs of the Alaniz
estate, could not testify for the reason
that he was also her attorney, and any
thing said to him by Mrs. Alaniz was
privileged communication. Notwith-
standing this, however, the evidence of
the business acuteness of Mrs. Alaniz
seemed to the impartial outsider to have
been we'll made out, but the jury thought
otherwise and returned special findings
which had the practical effect of break
ing the will. 1t was very probable that
a new trial would have been granted by
Judge Clark on the ground that the
findings of the jury were contrary to the
evidence, and if not the case would have
been appealed. The supreme court
would have taken about ten months or
so to pass upon the case, and then if the
trial court was confirmed the second will
would be probated and the contestants
of the first will still be out in the cold.
OF course second contest might be in
stituted, but it could scarcely be ex-
pected that second jury would make
"a return like the first. The lightning
never strikes hap-haZard twice in the
same place, and aside from trusting to
luck with the jury, the time when the
first will was made was too remote from
the time when the second was drawn to
successfully claim a continued state of
mental decrepitude and incapacity. The
affairs of the estate have, naturally, been
at standstill during this disputation
and to prevent a continuance of this
state OF things for the next two or three
ycoio SoiSSoSioHS nave Deen maze on
both sides and the will will be now ad-
mitted to probate
THE CREEDE WILL
In the contest that has just been in
augurated against the will of Nicholas
c. Creede, the facts have been fully
ventilated, and today the matter will
again come up in the probate court. It
is safe to say, however that Judge Allen
will do nothing in the case but allow it
to go over until after the holidays, when
Judge Clark will hear it. In this case it
is refreshing to know that the tetsator
has not been charged with "unsound
mind" and mental incapacity'' to make
a will. These allegations in will con-
tests have such nutty flavor surround
ing them that they are to be viewed with
suspicion at all times.
The claims of Mrs. Louisa Creede will
raise some nice points of law She signed
her rights as wife of the deceased away
for certain amount, during the life
time of her husband, but it is an open
question whether wife can SO divest
herself lacking a divorce. Primarily.
however, it is scarcely to be expected
that the court will allow her the family
allowance of $3.50 per month that she
demands, with the Creede family man
sion for the reason that alimony was
refusd to her when divorce proceed
ings were begun. So far as she is con-