The daily morning journal and courier., 1903-11-07
BENNETT WILL DECISION.
NO UNDUE INFLUENCE USED BY
 MR. BRYAN
Sealed Letter Not Part of tho wiIl, but Court Has No Opinion to Express Re- garding Disposition of the S5o,000 Gift fin That Lettsr-Matter May be Adtudicated i'm Another Court.

Gift fn That LettsE-mathoE May 1o Adtudlcated i'm Another Court. Decision in the Philo S. Bennett will case, in which William J. Bryan ap- pears both as an executor under the will and a beneficiary, was made by Judge Cleayeland in the probate court yesterday. The form of the decree will be announced to-day, when MT. Bryan will be present.
 The judge decided that no undue in- fluence had been exerted by MT. Bryan, but that the sealed letter giving $50,OOO to MT. Bryan and his family was not a part of the will, and could not be ad- mitted to probate. Judge Cleaveland did not pass upon the legal effect of the trust declaration in the letter, and it would appear from his decision that MT. Bryan is not prevented from at least attempting in some other way, probably in the superior court if not in the probate court, to enforce the pro- visions in his favor in the sealed letter, which letter is still in the custody of the probate court here. Tn his decision Judge Cleaveland said, in part:
 sThe testimony of MT. Dewell, who had known MT. Bennett 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 presumption, if any, might be raised by reason of MT. Bryan's drafting the will has been, in the opinion of the court, abundantly overcome by the evidence. MT. Bryan testifies that the idea of a bequest in his favor, so far from being suggested by him or Mrs. Bryan, was a complete surprise to both-a statement in which the court has entire confidence in view of MT. Bryan's frankness on the witness stand, and his evident desire to fully disclose all his relations with the testator, and all the circumstances sur rounding the drafting of the Will. It must also be remembered that the tes- tator had ample opportunity to change his will at any time during the last JuTGG5 Edlo VI AAAss lllSs eNiANA ST-~ knowledge of MT. Bryan.
 s'Mr.. Bennett did not in his will forget any of his heirs-at Jaw, and made am- ple provision for the support of his wife. Taking the total amount of the specific legacies, in connection with his estimate of the residue as expressed in the sealed letter, he evidently thought he was giving his wife s10O,000, or more, absolutely, out of an estate which he apparently thought would approximate S3O0,OOO The Bryans were not the only legatees outside of the widow and his heirs-at-law, but the testator, besides making liberal public and charitable bequests, made generous provision for relatives who would have received nothing but for the will.
 sMeasured by MT. Bennett's devotion to MT Bryan and to the principles for which both had contended the bequest of S50,0O0 to the Bryans, to take effect after the testat or's death does not seem more unusual than the gift of $3,- 900 offered to MT. Bryan while they were comparative strangers, and actu- ally paid during MT. Bennett's life.
 sThis court finds that neither the twelfth clause of the will nor the letter therein referred to was procured by undue influence. <. $
 ..The other question to be considered Is whether the letter contained in a sealed envelope, and referred to in the twelfth clause of the will, was so in- corporated by reference as to be made a part of the will. Even though the law in this state is, as it seems to be in most jurisdictions, that such a paper, under certain conditions, may be incor- porated by reference, this letter is ob- jected to on other grounds. Even if it be conceded that the twelfth clause in x this will refers to the extraneous paper as being in existence at the time of the execution of the will, the authorities agree that the paper referred to must in fact be in existence at the time of the execution of the will.
 Was the letter in the sealed envel- ope in existence at the time of the exc cItion of the will? This question is an .sv cred by the first sentence of the let ter itself It reads: Tn my will, just executed, I have bequeathed to you, etc. True, the typewriter draft was prepared in Nebraska two or three days before the execution of the will, but this J Jtypewritten draft was not designed tc be the letter to be referred to in the will, and cannot be considered as such
 tIn view of the plain recital in the letter itself, it is difficult to see how without an utter disregard of the au. thorfties, this letter can be incorporated into the will and this court therefore finds that the sealed letter cannot be admitted to probate as a part of the < will It is not, however, the province of this court in probating will to con, strue it's provisions. Hence the twelfth clause, whether operative or not, vii be admitted to probate as part of tho will; and in thus refusing to probate the sealed letter as a part of the vii this court does not wish to be under. stood as expressing any opinion as te whether the letter, without being pro bated, can have any legal effect as z declaration of the trust attempted tC be created by the twelfth clause Of the will.'
 Afterwards Judge Cleaveland stated that it was question whether the pro bate court had a right to consider thu construction of the sealed letter, and i was also question whether the law yers in the case could so frame ques ton in relation to the matter as t bring 1t within the province of the pro bate court.
 Counsel for MT. Bryan said, ill repl,