The herald., 1897-02-04
The Old Man Had a Lucid In
terval
BUT IT DID NOT SUFFICE
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Boom Literature East-Notes

Boom Literature EaSt-NOte6
What purported to be the last will and
testament of Frederick B. Emery, late
Of Long Beach, has been denied probate
by Judge York. and the estate will now
be distributed under the statute.
Thus ends what has proven a most in
teresting case and not lacking in certain
sensational features.
The decedent at the time Of his death
was very old man. In January, 1894
he suffered two apoplectic strokes, and
from the effects he never fully recover
ed. In September 1885, Frank Emery,
his eldest son petitioned the court that
he be appointed guardian of his fathers
person and estate. alleging incompe-
tency The petition was contested by
the petitioners mother. Mrs. Sarah B.
Emery. who. in filing separate petition,
did not contend for the competency of
her husband. but did urge that as point
OF law she was justly entitled to be ap-
pointed the guardian of his person and
estate. The court sustained the claim
of the wife as against the son and Mrs.
Dmery was appointed legal guardian of
her husband.
In September, 1896, Mr.. Emery died, at
the age of II years. Then Frank Emery
offered for probate a will purporting to
Right there a curious contradiction be-
came apparent. Upon filing his petit
ton for appointment of a guardian
u k Lyv,,e n n holI hot n &c fat h
er had been incompetent to transact bus
mess from the time of the apoplectic
strokes. which took place in January,
1894; and yet the will offered for probate
was dated only a month later and rep
re ,ented the decedent as of sound, de-
posing mind.
But the will. as might have been an
ticipated, was not to escape challenge.
The widow, Mrs. Sarah B. Emery, and
certain of the children, entereda contest
Of the will on several grounds. viz, the
incompetency of deceased; denial that
the document was his will; the allega-
ton that decedent was of unsoundl mind,
ana that he was not free, at the time the
Will was drawn, from duress, fraud and
undue influence. Other grounds there
were but these formed the main basis Of
contest
The case came to trial in department
Denis represented Frank Emery, while
r. r. willis and the law firm of DAWN &
Rush watched the interests of the con-
testants. Some rather sensational tes-
tinony was submitted and after several
days trial the court took the case under
consideration. Yesterday Judge York
handed down his opinion wherein he
closely examined into the facts of the
case and sets forth the reasons for
breaking the will.
ONLY A LUCID INTERVAL.
"As soon as said Emery had given
to the draughtsman the terms Of the
will he became physically exhausted
and lay down to rest. After he had
signed the will and 1t had been witness
ed, and before the witnesses had dis
persed, he discovered that he had made
q mistake. and, in language which indi-
Gates loss Of mental and physical energy,
he made the remark, Oh let 1t go now.
If we were dealing with a person of
sound mind this remark would indi-
cate that the mistake was Of so trivial
Importance that the testator preferred
to let 1t go rather than make the neces-
sary changes. No so when the will was
that of a man Of unsound man, whose
only power to make a will rested on a
lucid interval The making Of a will
in lucid interval is to be carefully in
vestigated, and 1t must be ascertained
not only that will was dictated during
a lucid interval, but that that lucid in
terval continued until the will was COM
pleted. In this case there was lucid
interval during the statement of the
terms of the will to the draughtsman.
Did it continue until the work was
done?
NOT HIS WILL.
Emery knew that the document
drawn by the draughtsman did not ex-
press his will. 1t might have been that
the draughtsman had not correctly ex-
pressed what said Emery wished, or II
might have been, as frequently is the
case when sane men make Wills, that
the testator had not clearly expressed
his wishes to the draughtsman. Wheth-
er the mistake said Emery referred to
was important or unimportant, or whom
1t affected. was not stated and cannot
be known. Knowing that Emery was
weak In body and mind, we are unable
to determine how much he would fore.
go rather than renew the exertion neces.
sary to make the correction. The fac
that he had signed the will without max.
ing the correction is also significant
circumstance.
II hold that the evidence shows thai
the decedent became incapable Of cop.
ing with the subject in hand before the
wil1 was completed. That the lucid In.
terval did not continue until his will was
expressed, and, hence. that the docu
ment offered for probate is not the las
will of decedent.
1.-THE contest is, therefore, sustained
and probate refused"
VALUE OF THE ESTATE.
Az heretofore stated, the will beine
broken, the estate of the deceased viii
be distributed in accordance with ths
terms of the statute. It Is valued al
about 10000, Of which amount $1,000 Is
represented by Long Beach property
the balance being cash in the bank. Be.
sides the widow there are children OF
the deceased as follows: Frank B. En-.
cry, Arlena Cox, Evalina Weller. and
William, Mabel. Nahum and Sadie En-.
cry.
A TERRIBLE MISTAKE.
For Injuries to Ethel West $4,000 Dam
ages Are Claimed From Rice Rros