The Washington times., 1902-04-08
UTERMEHLE WILL Is
SUSTAINED BY COURT

a reasonable time and after Information
on that subject. permitted to change theiI
previous positions; but the word rights
in such cases is generally interpreted to
refer to facts. or facts and law combined
and in most of such cases l think 1t will
be found that the other party to the liti-
! CATION has taken advantage Of their ig-
! norance, or has in some way contributed
to conceal the facts and keep them in fg-
I noTance In this case, however. the only
wrongs complained of by the caveator re-
late to the alleged exercise of improper
nfiuerce or fraud in the procurement of
the execution OF the will in 1887. and the
alleged quieting promise of his grand
mother made to him the day after the
! testatcr's funeral. At most this could not
| have influenced him longer than during
the life of his grandmother. for on her
death early in 1893. he knew or could
have known by enquiry. just what estate
( she had and how she had kept her
! promise.
'It is quite evident from the circum-
stances in proof that he then had the ad-
/ vice of counsel learned in the law, and II
( he was ignorant of any rights he would
/ have been informed of the same. II is
| strongly urged, however. that he was ig-
! norant of any ground upon which to con-
test the will until May. 1900 and for that
/ reason he should now be permitted to re-
! puulaCe MS cldlIl lue anu Ot
! allowed to contest it. the same as IL he
had refused to accept it's provisions and
! had filed his caveat, instead of his con-
| sent when the same was first offered foc
| probate.
.All these evidential facts which he
! says he only learned in 1900 were accessi
Bile to him in 1889 and the caveatees did
nothing to keep him in ignorance OF
them: certainly nothing is claimed to that
I IIa Ir,tf hat
he knew the greater part Of the real
estate that his grandfather owned at the
time of his death. and he knew how many
and who the heirs were; what his legal
rights would be II there was no will.
From 1889 to 1900 he was consistently
claiming receiving and enjoying the prop
erty formerly belonging TO his grand
father directly under the will of George
W. Utermehle. or directly under the will
of Sarah Utermehle. who was herself
estopped by her election to take under her
husbands will. and her legatee and de-
visee would be equally estopped from dis
putting its validity, unless he can be ex-
cused by reason of his said ignorance.
There is no other excuse offered, accord
ing to his own testimony. that has any
semblance of sufficiency. He says he WAS
sick for six weeks shortly after his grand
mothers death; but aside from that he
physically or mentally. TO exercise all the
diligence and care that prudent and red-
sonable man is required to do to ascer-
tain his rights and protect them by legal
proceedings.
During all this time he was bound to
know that other parties claiming under
the will were treating the property de-
vised by them as their own; selling 1t or
conveying it in trust, or otherwise chang
-, ,rair in aIat hp
which they had the right to do. relying
upon his conduct in doing the same with
that received by him.
The Courts Ruling.
Under these circumstances / am con-
strained to hold that the ignorance relied
upon does not give him a right to repu-
date the position first taken and so con-
sstently held for so many years. and 70
now assume position directly contrary
thereto. whether he is willing to surrer-
der the property held by him. or to ae-
count for the same or not"
Unless there is a valid excuse for the
long acquiescence in the situation occa-
stoned by his first position. he cannot be
allowed TO change, although re now offers
to give up or account for all the property |
claimed and still held Under the will.
There is no such excuse, in my judg |
ment. His negligence in ascertaining evil |
dence on which to base a contest cannot |
excuse his active conduct in asserting |
rights under the will. He must be con- |
sidered. in the language of some of the |
authorities, to have been willfully iSno-
rant and such ignorance of facts where |
a reasonable man of full age ncglects the /
means of information which ordinary pru- !
dence would suggest will not be allowed |
TO relieve him from an estoppel.'
Neglect of Plaintiff.
THE acts and statements of the plaintiff |
and his neglect to intimate any purpose to
dispute The validity of the will for SO
many years, during which time parties
and witnesses have died and positions of
parties have changed. should now pre-
clude him from disputing its validity for
ever in any court both as a will of per-
sonal property and as a will of real es-
tate. whether the same is admitted to
probate or not.
He cannot in my Judgment take money
under will and hold and use it to defray |
the expenses of litigation to destroy the
will with chance that he may by such
destruction get a different title to it, and
to more property now held under the same
instrument by other parties.
The fortunes of the contestants in
court cannot be determined in advance;
but the right of either TO inaugurate or
the suit against the other on
The merits must often be determined in
some form, regardless of the prospect
hat either party may have to succeed
on the merits if the suit Is allowed to
proceed. To that extent only does the
present motion in fact go: and the judg-
nent now pronounced does not in any
way determine the question as TO which
party is correct on the other issues. pro-
yided they could be tried
When the decision of the court was an
bounced MIR. Perry. representing Mr. Uter-
nehle, gave notice that he would take an
appeal from the judgment to the Court of
Appeals for the District Il