The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1906-12-23
miller WILL
CASE DECIDED
Supreme Court ReverSeS Low
er Court and Orders a
New Trial.
CHILDREN WERE CUT OFF
ALLEGED THAT SECOND WIFE
USED UNDUE INFLUENCE.

The supreme court handed down an
opinion yesterday in the matter Of the es-
tate of Thomas Miller. in which three
distinct opinions are given by the three
justices of the supreme court. The case
Is that of Margaret Miller and others, ap-
iellants, against Elizabeth Livingston.
e-lecutrix. and Elizabeth Livingston, re-
spondent and must be again tried in the
district court Of this county, the lower
court having been found in error In ruling
out certain testimony which WIS c0nsld-
cred in the judgment of the case.
The leading opinion is written by. JUS
tice D. N Straup. who reverses the lower
court. Justice Frick writes a supple
mentary opinion in which he concurs
with Justice Straup, and the third opin-
ion is written by Chief Justice McCarty,
legal points involved, but does not CON
cur in the belief that the case should be
retired in the district court
Brought by Daughter.
The action was brought by Margaret
Miller, a daughter OF Thomas Miller on
her own behalf and on behalf OF other
children of Miller by the first wife: VINO
vision of the estate, they having been
willed 81 each. In the complaint II is al
legged that the Will was made by her Ia
tner under undue influence end duress-
Miller was twice married He lived with
his first wife in Scotland and later in
New York and five children were born 10
her She died in 1880. In the same year
he married his second wife, who had lived
in Utah with a former husband, but who
mad secured a divorce from him snort
time before her marriage WIN M YT
and Miller came to Salt Lake, where he
resided with his second wife. he entered
the brass founders business ana accumu-
lated fortune estimated Varlously from
81 TO $4,000.
Miller made his will in 1890. devising all
Of his property, valued then at about
S. 900, to his second wife, and leaving his
children by the first wife only 81 each
There was no issue by the second Wife
lie died in 1901, and she died March IL,
1904, leaving Elizabeth Livingston. a SIS
made By Miller was not filed in the dis
trict court for probate until after the
death Of Mrs. Miller, and Elizabeth Liv-
ingstOn. the heir at law Of Mrs. Miller,
vas appointed executrix-
Child Commences Suit.
In 1905 Margaret Miller, a daughter OF
Miller by his first wife, acting on her
own behalf and on behalf of the other
children by that wife, filed suit IN the
district court in this county to revoke the
will alleging among other things that at
the time of the execution OF the instru-
nent Miller was acting under Guress, re
straint and undue influence. 1t Is al
legged in the complaint that Miller IN
his Younger days had formed an uncon-
trOlable attachment with and for the
person named as his wife in the VIII pre-
scented for probate, 10 such an extent that
he deserted his family in Scotland and
came to New York where his family soon
followed him, and ne was compelled to
support them; also that after the death
of his wife he deserted his family and
married the devisee after his arrival IN
Utah"
Was Under Restraint.
L is claimed that he was induced and
compelled to make the will against his
own wishes, and the further allegation is
made that the will was made upon the
misrepresentation Of the second wife that
his children by the former wife no longer
cared for him. ana that they had received
their share of the estate upon the death
of their mother.
Allegations Denied.
In her answer to the complaint, Eliza
beth Livingston denied all of the alleg2-
tions in the complaint that reflected upon
the influence of her sister over Miller The
case was tried before judge of the dis
the court decided the case in favor of the
defendant, Elizabeth Livingston, and
judgment was entered accordingly.
Drawn by Banker
The testimony brought out the fact that
the viii was drawn up by B. H Schett-
Ter, private banker, who was the con
fidenriaI adviser Of Miller. Schettler tes-
to him and told him that she wanted NIL
ler's will drawn up in such a manner that
AIillers children by the first wife would
be cut off from participation in the divi-
sion Of the estate. Schettler drew up
will which Mrs. Miller approved Miller
called later at Schettler's bank and was
shown the wall.
Did II to Keep Peace.
well yes. I suppose So" Miller said,
according TO Schettler, when he exam
ined the Will; Il suppose 1t will have to
BE- 50 to keep the peace-tO keep the peace
to keep the peace"
, Lower Court Erred.
Justice straup holds in his opinion that
the lower court erred in excluding certain
testimony. He states that it Is not IN
his right to pass upon the weight Of the
excluded testimony, or the weight of the
testimony which was admitted. The
Judgment Of the lower court is reversed,
however. and the case is sent back for
retrfaL
Justice Prick writes a separate opinion,
concurring with that Of Justice Straup,
stating that il Is his conviction that a
will contest is a matter of law; that he
Is Of the opinion that the lower court
erred IL excluding evidence which should
have been admitted and which was in
favor Of the losing party to the action;
and for the further reason that the lower
court had no right or authority to weigh
excluded evidence
Chief Justice McCarty concurs In the
opinion as 10 the matters of law, but
holds that the district court should not
6e cod