Evening star. [volume] (Washington, D.C.) 1854-1972, 1903-05-07
Lower Court Sustained in
Thomson Will Case.
THE TITLE TO REALTY
VALIDITY OF THE WILL OF FOR
MER o. s. CONSUL.
Eudrment Affirmed in Case Of Hutchins
Against Mum and others-Another
Cause demanded.

The Court Of Appeals late yesterday
afternoon handed down an opinion. written
by Mr. Justice Morris Affirming the judy
ment of the District Supreme Court In the
case of Andrew C. Keely. trustee. ana
others against Richard K. Paynter ana
Others Familiarity known as the Thomson
win case. The action was instituted In the
District Supreme Court a year or more ago
to determine the question of the Vahdlty %
the will Of the late William Thomson. for
merty United states consul at Southamp-
ton. England. to pass title to valuable real
estate in the District of Columbia owned
by Mr. Thomson at the time of his death.
The appellants WHO were the plaintiffs in
the trial court, claimed to have taken ute
to the real estate in question from num-
Der of the heirs of William Thomson, anu
they contended that Mary c. Thomson ana
Georgiana H. Thomson, who held the prop
erty under the alleged will as deVfsees,
were improperly in possession because OF
the fact that the will was Improperly ex-
ecuted to pass title to real estate IN the
District and further, because the VIII had
been procured by undue influence ana was
executed at a time when the testator was
mentally incompetent to transact such pusi
ness. The will was executed In England
and was signed by two witnesses on one
day and on the following day by another,
John H. Cooksey, the vice consul. AT the
time of it's execution three witnesses were
required to pass title to real estate In the
District of Columbia, and the main question
I'm the case was, whether the three parties
not having signed at the same time the
third one could be considered a proper wit
ness to the WILL -
Defendants Contention.
1t was maintained on behalf Of the de-
PENDANTS that the plaintiffs represented
heirs or devisees under the will In question
who had already taken considerable prop
erty in New York and England under the
will, 1t being conceded that in both Eng
land and New York at the time referred
to, only two witnesses were necessary 10
pass title to real property.
The trial in the District Supreme Court
was had before Chief Justice Bingham and
Jury about one year ago, and occupied
about three weeks 1t resulted in a verdict
In favor of the defendants. thereby sus-
tanning the will. From this verdict an ap-
peal was. taken to the Court of Appeals
upon the ground of errors of law alleged
to have been committed at the trial. 1t be-
ing also charged that there had been I'M
proper conduct on the part of some MEM
bars of the jury during the course of the
proceedings.
In it's opinion the Court of Appeals holds
that the will of William Thomson, with the
certificate appended of John H. Cooksey
sufficiently executed for the convey
ance of real estate in the District and that
there was no error in the exclusion or
admission of testimony by the court below
with reference to the trial of the issues in
the case. The court further holds that the
trial court was the best judge of the pro-
ceedings had before it, and it was difficult
to see how the lower court could properly
have done otherwise than deny the motion
for; new trial as far the allegations of
misconduct on the part Of the jury and
others were concerned.
The plaintiffs were represented by Attor-
NAY Irrob Toe RI ay,d T
Simmons while Attorneys d. w. Baker and
Wilton j.. Lambert appeared for the de-
PENDANTS.
=. On Special Appeal.
The decree of the lower court has been
affirmed by the Court of Appeals in an
opinion written by Mr. Justice Shepard, In
the case of Stilson Hutcfhns appellant,
against Charles A. Mum, Carrie l.. Mum,
James G. Hill and William P Lipscomb.
A special appeal was allowed in this case
from an interlocutory order dissolving
restraining order and discharging a rule
to show cause why an injunction should
not issue restraining the appellees from
erecting an addition to a building on lot
adjoining that of Mr. Hutchins. whose
house is 1908 Massachusetts, avenue. The
Munns reside next door. 1t was claimed by
Mr.. Hutchins that an erection by them of
an addition to their house would "substan-
TALLY destroy all light and ventilation to
the pantry in the dwelling of the complain
ant, as well as partially closing the window
in his dining room and the windows in the
two rooms in the second and third stories
of his dwelling on the east side thereof and
III many other respects operate to injure
his property, as well as result in grievous
nuisance to your complainant"
The Court OF Appeals holds that Though
the complainant may suffer great hardship
through the cutting off of light air and
View heretofore freely enjoyed that fact
alone cannot justify court of equity in
restraining the adjoining owner from the
exercise of" lawful dominion over his own
property The decree must therefore be
affirmed with costs" ..,.
Attorneys Brandenburg & Brandenburg
and jefferson Chandler appeared for Mr.
Hutchins,. while Attorneys Samuel Maddox
and H. Prescott Galley represented the
appellees.
Judgment Reversed.
In the case of the Bokel-Gwynn- McKen-
ney Company appellant, against John F.
Costello. the Court of Appeals. in an opin-
ion written by Mr.. Justice Morris, has re-
versed the Judgment of the District Su-
preme Court and demanded the cause for
new trial.
The cause, out of which the proceed
ings now before US have grown" explains
the Court of Appeals. and which shows
the remarkable case of probable expen-
dHure of several hundred dollars to avoid
the payment of a comparatively small
claim of $10O.JO. the justice of which seems
never to have been contested" resulted in
Judgment for the appellant.
BY a deed executed the day the cause
was commenced the appellee, for a nominal
consideration, 1t is alleged, conveyed to
his brother, Jeremiah A. Costello, the only
property which he had. The appellant
caused the appellee to be arrested under
the section of the Revised Statutes which
provided for the arrest and detention of
debtors fraudulently conveying away their
property. Costello sued out a writ of ha-
beas corpus. which was finally discharged
An appeal was taken with the result that
the order remanding Costello to the GUS
tody of the marshal was affirmed by the
Court of Appeals The main suit was then
resumed, An issue was framed to be tried
follows:
Did the defendant, John F. Costello on
or about the 4th day of May, 1901 convey
away. lessen or dispose of to his brother
jeremiah A. Costello, his property. rights
or credits with intent thereby to hinder or
delay the recovery or payment of the debts
of John F. Costello?
At the trial the facts were proved bv tho
plaintiff. and IL was shown that the defend
ant was insolvent There was no Testimony
offered in behalf OF the latter But a mo-
ton was made by his counsel to the court
TO direct a verdict in his favor. This was
accordingly done. and an order made dis
charging the defendant from custody. The