Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1910-03-08
READY WINS NEW
TRIAL ON WILL
FORGERY CHARGE

BY a vote of Il to l. the chancellor
voting alone, the Court of Errors and
/ Appeals in Trenton today voted TO set
aside the conviction of Matthew j.
Ready, the Newark lawyer who was
him with forging the will of the late
John w. Russell. of East Orange.
The conviction is set aside and a new
trial granted ON the ground that the
trial court refused TO admit evidence
which was intended to show that Rus
sell had signitied an intention to make
a will.
For the first time in the history of
the Court of Appeals in this State the
court has been called upon to decide
whether ~pre-existing testimony of an
alleged testator is relevant n adj
missible, when not too remote to be
material. and in today's opinion it
holds that in cases of thisk kin the evil
dence should have been admitted.
1T cannot be doubte, d. said the
chief justice, that if the decedent
shortly before the date of the contro-
hti W. ~ hoo c. aP hH9 No. W
make a will and to leave his property
to his housekeeper. Miss Clavin, this
preexisting testamentary design would
not only have been relevant. but would
have had great potency in determining
the question whether the disputed in
strument was a forgery or his genuine
will, for what a man determines to do,
or not to do, he generally does, or re-
c., 81 raa... ~ ,nlC. enr,n+hsny
occurs before the time for executing
his intention arises which causes him
to change his mind or prevents him
from carrying his intention into execu-
ton.
"To this extent | find no difference
in judicial view. But on the. question
whether a persons intention to make
a will or TO emake a will of a particular
purport can be shown by his antece-
lent declarations of that intention,
judicial sentiment is altogether out Of
harmony"
The chief justice goes on to show
that in England declarations of this
character are admissible, while in his
country the courts are divided on the
question. This division the chief jus
tice showed by citing a number of the
leading cases in the country, after
which he reviewed the New Jersey de-
cisions, showing that they have been
in conflict.
Reviews Old Decisions.
From this resume of the New Jer-
sey eases" continued the chief justice,
lit appears that the prerogative court,
frIm it's decision in Day vs.. Day in the
year 1881 down to hat in Davis VS..
Elliott in 1897, has consistently held to
the view with the possible exception
Of one CASE that antecedent declara-
lions of the testator are competent for
the purpose of showing that the pro-
visions of a contested will are contrary
to, or in harmony with, his intentions,
views and feelings. as exhibited by
these declarations; that the Supreme
Court at one time held the same view,
but subsequently repudiated it, and
held that such declarations were com
petent only for the purpose of showing
mental capacity, or lack or 1t, in the
t~estator, and that this court has not
until this time been called upon
definitely to decide the question, but
has obiter expressed the view that such
declarations are competent for tho pur-
pose Of showing the state of mind of
the testator when his state of mind
at the time of making the declarations
is gernlane to the issue beinw tried.
THE present case now requires us to
declare our conclusion upon this ques-
ton, and it is this, that the true rule is
that stated by Professor Wigmore in his
very able treatise on the law of evil
dence, namely. that where the issue is
whether a will was executed or whether
a will vas mad to have a certain tenor
or provision, the ~pre-existing tesla
mentary design of the alleged testator
is always relevant, and to evidence the
existence of that design his antecedent
statements are admissible when not too
remote to be material.
THE excluded declarations of Mr..
Russell tending to show his testament
tary design are those contained in the
proffered testimony of Elisha Doremus.
These declarations were not rejected as
too remote in point of time. But solely
upon the ground that they were here
say. Under the rule which we have de-
clared they were o Objectionable upon
that ground and should have been adj
mitted, unless it had been made to ap-
pear Iildl llltN were ~ TtliiOlc dS. " Dc
immaterial upon the issue, whether the
paper writing dated thirteen. days be-
fore the death of Mr.. Russell was. in
fact. his last viii and testament, or
whether it vas a forgery.
Their exclusion was. we think. harm
full error. 1t is proper that we should
say before closing that in the state of
our decisions, as they existed at the
time when this case was tried, the trial
court was not only justified in following
the decision Of the Supreme Court, but
was under a legal obligation to do so,
and that the Supreme Court itself was
| always required to pursue the same
course, unless 1t considered hat decl-
| sion to be manifestly u~nsound.""
Immediately after he received the
news of the decision. former Judge
Thomas s.. Henry, of his city, who Is
| the accused lawyers counsel, notified
Mrs. Ready. the mans wife, who Is
now working as a clerk in a department
H.