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

the form Of the decree could De an
nounced In Mr. Bryans 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 l,iven for further discussion
of the case II desired, He then said
II find that the question of whether
the VIII was properly executed was not
raised find that II was properly eX-
eeuted and find that the testator had
sufficient testamentary capacity.
81 find that there WAS no undue In
iiuence by Mr. Bryan over Mr., Bennett.
II was claimed that the sealed letter
should be Incorporated In the Will, ]
find that reference IN the will was suf-
ficlent as TO the sealed letter, yet the
language In the document itself plainly
indicated that the Will was executed
before that letter WAS written. There
was In existence before the VIII was eN-
ecuted duplicate of the sealed letter.
That Is considered in support OF the
contention that that paper was a part
of the VIII. The sealed letter was found
with the Will find that there was no
undue influence, but that the sealed let
ter was not Incorporated in the Will
The court further said that he ex-
pressed no opinion as to whether the
N'NA'h l'AANl NlliNu BlNto NH'iNNN w 'At
Bryan and his family can be incor-
porated In the Will
1T may be urged he continued,
that It can be used but as TO that the
court has no opinion to express"
Attorneys Immediately asked the
court If a construction had been placed
upon the bequcst and the court called
their attention to the text of the de-
cision
Afterwards Judge Cleaveland stated
that It was a question whether the
probate court had right to consider
the construction OF the sealed letter,
and 1t was also a question whether the
lawyers in the case could so frame a
question In relation 90 the matter as
TO bring It 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
had not yet been informed OF the deci-
sion he would undoubtedly decide to
enter an appeal from It,
The text of the decision includes
about $500 words. In 1t the court, af-
ter reviewing the evidence, says;
"The testimony of Mr. Dewell who had
known him for quarter Of a century
shows that the testator was sharp,
able business man, man OF decided
opinions from which he was not easily
turned aside. But whatever presump-
ton, iGany might be raised by reason
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 be-
quest in his favor, so far from being
h,, 4, "A
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 clrcum-
stances surrounding the drafting Of the
VIII IL must also be remembered that
the testator had ample opportunity to
change his viii at any time during the
last three years OF his life and without
the knowledge OF Mr. Bryan.
Mr. Bennett did not in his viii forget
any OF his heirs at law and made ample
provision for the support of his wife.
Taking the total amount Of the specific
legacles 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 We're 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
for relatives who would have received
nothing but for the will.
Measured by Mr. 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 81 600 Of
fered to Mr., 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 un-
due influence.
'The other question TO be considered
Is whether the letter contained I'm a
sealed envelope, and referred TO in the
twelfth clause OF the Will was so in
corporated by reference rs to be made
a part OF the viii, Even though the law
In this state is. as il seems to be In
most jurisdictions, that such a paper,
under certain conditions, may be in
corporated by reference, this letter Is
objected to on other grounds. Even II
II be conceded that the twelfth clause
In this VIII refers to the eXtraneous pa
ner as being In existence at the time
of the execution Of the WILL the au-
thorlties agree that the paper referred
To must In fact be In existence nj the
time OF the execution of the will
WAS the letter In the sealed en-
velope In existence at the time of the
execution of the will2 This question Is
answered by the first sentence of tho
letter itself II reads
In my will, Just executed, have
bequeathcd 20 you etc. Thus the tyne
written draft was prepared In Nehras-
ka two or three days before the execu-
ton of the viii, but this typewriter
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 IN
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-
thorlties this letter can be Incorporated
into the viii and the court therefore
finds that the sealed letter cannot be
admitted To probate as n part OF the
viii. 1t is not, however the province
OF this court In probating Will to con-
strue It's provisions Hence the 18th
clause whether operative or not Will
be admitted TO probate as part Of the
will, and In thus refusing To probate
the sealed letter as part OF the viii.
this court does not wish to be under
stood as expressing any opinion as to
whether the letter, without being pro
bated, can have any legal effect as a
declaration OF trust attempt to be cree