The Washington times., 1902-03-21
Conversation With Testa-
tor Admitted as
Evidence.
RELATED BY THE CAVEATOR
Objection to Plaintiff Answering Ques-
ton as to Whether He Had knowledge
of His Legal Rights at Time of Testa-
tors Death Not Sustained.

The contest over the validity of the
will of the late George W. Utermehle,
which has been in progress fer several
days before Justice Barnard, and jury
in the Probate Court ana which involves
property in this District worth S2,ooO,oOo
was continued yesterday.
The court rendered its decision upon
the questions submitted by counsel on
Tuesday. after considerable argument
The point in controversy arose upon
Charles II. Utermehle, the grandson of
Charles W. Utermehle, being asked to re-
late a conversation which he said had
occurred between himself and his grand
father when the latter was taking him
home in his buggy in 1877.
Objected to by Defence.
This was objected to by the defence
upon the ground of its being hearsay tes-
timony and its admission was contended
for upon the ground that it tended to show
the state of the feeling of the testatcr
toward the boy, which, they declared,
would he evidenced by further declara-
tions from that time uD to a short while
before the testator's death.
Counsel for the caveator declared that
they intended to prove that upon the oc-
casion in question the old gentleman had
requested the boy to avoid becoming en-
tangled in a family dispute which was
then in progress. declaring to him that he
proposed TO provide for him by leaving
him equal shares with his two aunts, as
lie would have done if his father had sur
vived
Ruling of the Court.
The court ruled at scme length, citing
numerous authorities, principally the re-
cent decision of the Supreme Court in the
Holt case. to the effect that such declar-
ations might be admitted upon an issue
of mental incapacity during the period
within which the mental impairment was
claimed to have existed as showing the
condition of the mind of the testator by
his utterances, but that they were not
evidence of the fact, being unswcrn dec
larations.
Upon exception being noted by counsel
for the cavcator to such ruling, Mr.. Uter-
mehle again took the stand, and was ask
ed regarding several subsequent declara-
tions to the same effect, made, according
TO the witness, as late as 1888.
Another Objection Entered.
After stating that he had no exact
knowledge of the condition of his grand
father at the time of his death, having
been for some time prior thereto absent
from the city. the question was asked of
.t--.t 10.
of his grandfather's death, had any knowl-
edge concerning his legal rights in the
matter. and whether he ascertained as to
what his rights were at such time.
To this counsel for the caveatces OBJ
jected, contending that as want of knowl-
edge of the law did not excuse one, and
everybody was presumed to know the
iaw, such testimony was inadmissible.
The caveator's counsel contended that the
authorities, especially in equity, made
many exceptions to rules of this kind,
especially to where the question present
ed was one largely of mistake OF fact.
mixed with that of law, in which cases
want of knowledge of ones rights were
allowed to be shown as indicating the
reason for their actions.
Admitted by the Court.
The court finally admitted the evidence,
upon which Mr.. Utermehle stated that he
was ignorant concerning his rights at the
time of his grsDdfsther's death, and when
he discovered that his grandmother, by
her will had failed to make good the
promise which be claimed had been made
to him that he was in bad state OF
health and was upset over the matter, and
was not able to investigate for some time
the true condition of affairs.
He further testified that after the fu-
neral of his grandmother he was present
when the Will was read and undertook to
give a conversation had at the time be-
twen his aunt, Mrs. Taylor. himself, and
several of the heirs, in which Mrs. Taylor
was alleged to have said that had her
mother lived a short time longer she
would have died a poor woman, as she
had less than 100000.
Expected a Different Will.
He testified that he had told them this
was a great surprise to him; that he had
expected an entirely different will. and
with a few remarks OF this character left
the house Mr.. Uternchle further stated
that shortly after this he was taken down
with a severe attack of rheumatism in
Frederick. which lasted about eighteen
months ard that his business here
was transacted through a power of attor-
ney given to q local real estate agent,
under which. he says, to the best of his
information, he received about $50. 600 in
money from his grandmother estate,
which was a one-third share of the same.
the other two-thirds going TO his two
aunts
He then referred to his visit to Wash
ington in the fall of 1899, when he left
Frederick. and said that his attention
was first called TO the fact of there being
some question concerning the will by q
local notary public, and that in pursuance
of information received he proceeded to
consult Mr.. Wilton J. Lambert, VINO in
vestigated with him the proceedings of
The Orphans Court: found that the pro-
bate OF the will had only been proceeded
10 the extent Of the personal property,