Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-11-06


nounced In Mr. Bryan's presence. At
torneys for Mr.. Bryan said that they
were ready for the decree at this time,
but the judge thought an opportunity
should be given for further discussion
OF the case II desired He then said
IL find that the question of whether
the VIII was properly executed was not
raised, | find that 1t was properly ex-
ecuted and find that the testator had
sufficient testamentary capacity
81 find that there was no undue In
fluence by Mr.. Bryan over Mr. Bennett
II was claimed that the sealed letter
should be Incorporated In the VIII.
find that reference IN the viii was sur
ticlent as to the scaled letter, yet the
language I'm the document itself plainly
indicated that the will was executed
before that letter was written. There
was In existence before the will was eN-
ecuted a duplicate Of the scaled letter
That Is considered In support OF the
contention that that paper was part
OF the will. The sealed letter was found
with the viii find that there was no
undue influence. but that the sealed let
ter was not Incorporated in the VIII.
The court further said that he eX-
pressed no opinion as to whether the
sealed letter which gives $4,000 to Mr.
Bryan and his family can be incor-
porated In the will.
1T may be urged he continued
that II can be used, but AS TO that the
court has no opinion 10 express"
Attorneys Immediately asked the
court If q construction had been placed
upon the bequest and the court called
their attention to the text Of the de-
csion.
Afterwards Judge Cleaveland stated
that II was a question whether the
probate court had a right to consider
the construction OF the sealed letter,
and II was also a question whether the
lawyers In the case could so frame a
question in relation 20 the matter as
to bring II within the province of the
probate court to consider It,
Newton Church and Hewitt, counsel
for Mr.. Bryan In this city said In reply
to question that although Mr. Bryan
sion, he would undoubtedly decide to
enter an appeal from It.
The text Of the decision includes
about $500 words. In It the court, af-
ter reviewing the evidence, says
THE testimony OF Mr. Dewell, who had
known him for u quarter Of century
shows that the testator was a sharp,
able business man. a man of decided
opinions from which he was not easily
turned aside But whatever presump-
ton IL any, might be raised by reas n
of Mr.. Bryan's drafting the will has
been in the opinion of the court abund-
antly overcome by the evidence Mr.
Bryan testified that the idea Of a be-
quest in his favor, so far from being
suggested by him or Mrs. Bryan, was q
complete surprise TO both, a statement
In which the court has entire confidence
In view OF Mr.. Bryan's frankness on
the Witness stand and his evident de-
sire to fully disclose all his relations
with the testator and all the circum-
stances surrounding the drafting OF the
VIII II must also he remembered that
the testator had ample opportunity to
change his Will at any time during the
last three years Of his life and without
the knowledge of Mr. Bryan.
"Mr Bennett did not in his will forget
any Of his heirs at law and made ample
provision for the support Of his wife.
Taking the total amount Of the specific
legacies in connection with his esti-
mate of the residue as explained In the
sealed letter he evidently thought he
was giving his wife 100000 or more,
absolutely"
This Is out Of an estate which he
apparently thought would approximate
100000, The Bryans were not the
only legatees outside of the widow and
his heirs at law, but the testator, be-
sides making liberal public and charit-
able requests, made generous provision
Tor relatives who would have received
nothing but for the viii.
Measured by MIR Benefits devotion
to Mr.. Bryan and to the principles for
which both had contended. the bequest
of $4,000 to the organs, to take effect
after the testatOr's death does not seem
more unusual than the gifts Of s., 600 Of
fered to MIR Bryan while they were
comparative strangers and actually
paid during Mr. Benefits life.
This court finds that neither the
twelfth clause OF the win nor the letter
therein referred to, was procured by UNI
due influence.
THE other question TO be considered
IL whether the letter contained In a
sealed envelope, and referred to In the
twelfth clause OF the viii, was SO in
corporated by reference as to be made
a part OF the will. Even though the law
In this state Is, as Il seems TO be In
most Jurisdictions, that such paper.
under certain conditions may be In
objected TO on other grounds. Even IL
1t be conceded that the twelfth clause
In this VIII refers TO the extraneous pa
per as being in existence at the time
OF the execution of the viii, the au-
thorities agree that the paper referred
to must In fact be In existence ut the
time Of the execution of the viii
Was the letter In the sealed en-
velope In existence at the time OF the
execution Of the viii? This question Is
answered by the first sentence Of the
letter Itself II reads
In my Will just executed, | have
| bequeathcd 10 you etc, Thus the type
written draft was prepared I'm Nebras-
ka two or three days before the execu-
| ton Of the viii, but this typewritten
draft was not designed to be the letter
10 be referred to In the viii and cannot
| be considered as such"
Tho Judge cites legal authority II:
| support OF his contention that the lat
| ter can be regarded as part Of the
VIII and goes on;
In View OF the plain recital IN the
! letter Itself II is difficult to see how
| without an utter disregard of the au-
| thorltles this letter can be Incorporated
| into the Will and the court therefore
| finds that the sealed letter cannot be
| admitted TO probate MS part Of the
| win, 1t is not however. the province
Of this court in probatlng a will to con.
strue It's provisions Hence the 18th
! clause, whether operative or not Will
! be admitted TO probate as q part of the
| VIII, and IN thus refusing to probate
| the sealed letter as "A part of the will.
| this court does not wish to be under
stood as expressing any opinion ms to
whether the letter without being pro-