Evening star., 1902-03-20
Resumption of Hearing in
Contest Proceedings.
COURT MAKES RULING
DECLARATIONS OF DEVISOR RE.
GARDING HIS PROPERTY.
Testimony Of Charles H. Utermehle,
Who Seeks to Set Aside
the Will


contested will case involving the estate Of
the late George w. Utermehle, considered
one of the most important and interesting
issues Of its kind tried in this jurisdiction in
recent years. The hearing has attracted
general attention, many members OF the
bar being among the listeners. Seated near
the caveatOr. Charles H. Utermehle. were
his wife and mother. The caveatees in
court were DR.. Leroy NJ. Taylor and Mrs.
Mamie E. Norment. The son and daughter
of Mrs. Norment were also present.
Immediately after the opening OF court
Justice Barnard announced his decision on
the points of law argued at great length
yesterday and the preceding afternoon The
issues were whether declarations made by
a decedent expressing his intentions in re-
spect of the manner of diSposing OF his
estate by will can be properly admitted In
evidence In the trial of issues involving the
validity of his will; whether they are COM
petent evidence to show that such inten-
tions were actually in the mind of the de-
cedent at the time they were made, and
whether they, as such, have any probative
force to entitle them to admission. to show
feelings Of affection or hatred towards mem
bers of his family at the time they were
made?
Statements Made Ten Years Ago.
The declarations of the late George w.
Utermehle, which Attorneys Perry, Lambert
and Baker, for the caveator, offered to
prove. were made about ten years before
the making Of the will. and when the ca
veator to whom they were made was about
twelve years old. The declarations, accord
ing to the court, were not Involuntary out
bursts Of any sort, but were statements OF
intentions or Of some course of conduct
which the declarant said he intended to
pursue at some future time.
Attorneys Worthington, Frailey and
Woodward for the caveatOrs argued
against the admission of such testimony.
The court sustained the objection of the
caveators, holding the declara tions referred
to offered as proof to be incompetent, be-
cause they have no probative force In
themselves to aid the jury In deciding the
issues presented in the case on hearing and
hearSay testimony.
'T think" said Justice Barnard, 1.-The
trend of decisions Is to narrow rather than
to widen the rule In such cases; and until
1t appears to be material to ascertain the
fact as to the making OF the declarations
regardless Of the truth or falsity Of their
contents. which is not now apparent In this
case. they should be excluded"
Testimony Of Charles H. Utermehle.
Resuming his testimony late yesterday
afternoon, Charles H. Utermehle made a
general statement Of his movements in life
up to the time of the death of George w.
Utermehle, in 1889. Directly after the
funeral of his grandfather, stated the
caveator, the family assembled at the
Utermehle residence to hear the will read
The following morning a conversation was
had. during which, so declared the cavea-
tor, his aunt, Mrs. Taylor, informed him
that it was realized that he had been cut
off with very little, and that her mother,
Mrs. Utermehle. would equaiize matters
with him by the terms Of her will. The
caveator said his grandmother assented to
this promise.
Testifying this morning. Charles H. Uter-
mehle stated the amount Of his income in
1887, the year his grandfather's Will was
made. to have been about 5000 annually,
and detailed the source OF the revenue.
Did you ever attack your grandfather's 8
will prior to the time the present proceed
ings We're instituted?" inquired Attorney
Perry.
''No, sir" replied the caveator.
why not?" the attorney wanted to know.
Il relied on the promises made to me by
Mrs. Taylor In the presence of Mrs. Nor
ment," declared young Mr.. Utermehle.
The witness was next asked If when ne
accepted certain bequests he was aware OF
the provision Of law that the acceptance OF
a bequest under a will constituted an es-
toppel against the party accepting later at
tacking the will. Attorney Worthington
objected. and another long argument fol-
lowed. the jury being excused.
The Points Raised.
Attorney Baker, for the caveator. con-
tended that an estoppel must be certain and
unquestioned. and where a person acts in
ignorance Of the facts surrounding the
making of a will, as well as In ignorance Of
the law. he is not estopped.
Not only was Charles H. Utermehle ignor.
ant Of the facts surrounding the making OF
his grandfather's will, according to Attor-
ney Baker, but he did not know his rights
under the law. Just as soon as he was
properly advised added counsel. he COM
n1{n1 with Inrr
he had accepted.
In connection with the arguments counsel
read from q great many authorities, the
question Of estoppel being one Of the prin-
cipal issues Of the case.
Protracted Discussion.
The discussion of the point was in pro-
gress for several hours. At 2:16 o'clock
Justice Barnard interrupted the argument
saying 1t could be resumed later on In the
trial. Attorney Perry thereupon proceeded
with the examination of Charles H. Utter.
mehle. Although objections to the questions
| were entered by Attorney Worthington. the
caveator was permitted to say that In 1889
| the day after the will Of George w. Uter-
mehle was first read after the latters
death. the witness was ignorant Of the law
relating to wills and to the circumstances
surrounding the making of the will of the
decedent. ..-t
ACCOTuluS u INC CdtcdtOTs Cue morning
following the death of Mrs. Sarah Utter
mehle. wife of George w. Utermehle, Mrs.
Taylor informed the caveator that her
mother. Mrs. Sarah Utermehle. had been
very liberal. and had she lived a few years
longer would have been a poor woman.
This, the witness said was a complete sur
prise to him. but he took no action, being
ignorant Of the law.
The caveator spoke in a general way of
his life from the time of the death Of his
grandmother until the year 1899. when.
upon receiving certain information, he
consulted Attorney Wilton J. Lambert and
was advised by the latter In reference to
his legal rights In connection with his
grandfathers estate. Acting upon the ad-
vice Of Mr.. Lambert. the witness said, he
wrote to Mrs. Taylor and Mrs. Norment
offering back what he had received from
the estate. The court proceedings were
instituted later.
Shortly before 3 o'clock the hearing was
adjourned until Monday morning next.
Demand a New Trial.
David Mccarthy, an engineer In one of