The Washington herald., 1908-03-12

New York. March n.-Evelyn Nesbit
Thaw, through her attorney. Dan
o'Reilly. served copies OF her complaint
and summons to-day upon Harry X.
Thaw. in Matteawan State Hospita; for
the Criminal Insane. and Mrs. William
Thaw, his mother. is named as code
fendant.
She brings the suit IN the Supreme
Court of New York County to annul her
marriage with Thaw. on the ground that
he was insane when he entered upon the
marriage contract, April 4, 1905.
Thaw and his mother are given twenty
days to answer the complaint or allow
the case 70 be won by default
a. Russell Peabodv, Thaw's attorney
in this action. reiterated to-day his de-
termination 10 conduct a bona hje and
vigorous defense OF the case, upon the
instructions Of his client
LunRtic at Time of Marriage.
The complaint Of Evelyn Neso;t Thaw
Is brief After setting forth the date
upon which she became the wife OF Harry
Thaw, ii continues 10 state:
AT the time OF the marriage OF the
plaintiff. Evelyn Florence Nesbit Thaw.
10 the defendant. Harry Kendall Thaw.
said defendant was a lunatIc. and of IN
sound mind, and was incapable of con-
tracing a marriage and that the cause
for annulling this Qarriage-to wit, the
lunacy OF said defendant-existed at the
time OF such marriage"
This complaint. sworn 10 by Evelyn
Thaw. was sent 90 Harry Thaw in the
MatteaWan asylum by a clerk in O'ReIIy's
Office shortly after noon to-day A sec
ond copy, with a summons. was dciiv-
cred TO Mrs. William Thaw IN her apart
ments at the Hotel Navarro later.
Peabody would not say to-day when the
answer Of the co-dCrehdants would be
in lie allowed il 90 be inferred that no
extension of time over the twenty-day
limit set In the summons would be sought
for from the court
Why Mrs. Thaw IS Co-defendant.
From discussions OF attorneys on both
sides OF the case. It became apparent TO-
day that the Inclusion Of Mrs. William
Thaw as a defendant in Evelyn Thaw's
suit was forced merely by technicalitv
OF law, and that the part OF Thaw.s
mother VIII be passive during the
| progress Of the case.
Sections 1747 and I74s or the Code Of
/ Civil Procedure cover this instance. Col
| Franklin Bartlett. who VIII represent
both Mrs. William Thaw and Harry Thaw.
as counsel in the action. explained the
bearing OF the law to-day.
/ In every action Of annulment based
/ on the grounds Of insanity" he said
both parties 10 the suit should be before
court In any case where the present
sanity OF one party is undetermined. II Is
proper that next friend OF that party
alleged 20 have been insane should De
I Joined in the action as co-pIaintif or CO.
defendant. as the case may be.
/ This is rule Of procedure which has
been approved by the appellate division.
I do not know whether Mrs William
I Thaw viii be called 10 testify for her son
| in this case or not II viii not be es-
sential"
Thaw willing 90 Provide.
Peabody said to-day, in reply to a
question. that Evelyn Thaw would not
have TO institute a separate suit. as Il is
within her rights 70 do. for maintenance
pending the settlement OF the aunuiment
| proceedings. She would be provided for
by her husband. as she has been provided
| for in the past. he said
Il IS understood that since his incarcer-
alton in the asylum. Harry Thaw has d.
rected Peabody to pay all OF Evelyn
] Thaw's living expenses and TO provide
-,
What arrangements. II any. have been
made in the matter Of q financial settle
ment upon Evelyn Thaw IN case Of the
success Of her suit. remains matter OF
private knowledge. Col. Bartlett-said
that he had not been intrusted with any
/ arrangements in this regard.
| The same counsel also said that nc
stipulation or arrangement between the
members OF Harry Thaw's family and
/ Evelyn Thaw had been formulated in the
matter of the attitude she should take
| IN possible future attempts to free Harry
/ Thaw from the asylum. This. II appears
to-day. was a matter which rested en-
tirely with the wife who is now seeking
/ freedom.
Her attorney had already announced
that she would be ready TO testify IN
| ldFOT OF ItdIE1 nav dL any time an at
tempt 10 have him released from the
asylum might be made.
Mothers Evidence Important.
Dan OrReiuy said to-day that in the
taking OF evidence. when the action
against Harry Thaw is before the Su-
preme Court. he will have TO prove only
that the man now confined in the asylum
was insane on April l. 1905, the date OF
/ his marriage.
/ Little evidence adduced IN the two trials
Of Harry Thaw on the charge Of murder
will be available IN the pending suit
There is one important portion Of the
| testimony offered in the second trial
however. it IS understood, which NAV
weigh in favor OF the prosecution Of the
annulment proceedings.
/ That is the testimony given BY Mrs.
/ William Thaw covering her observations
OF Harry ThaW's mental condition on the
/ day that he drew a cOdicil to his VIII pro-
vding fund for the perfection Of young
girls. That was the day Of his wedding.
and the only date specified in EVELYN