The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1915-09-08
CURATOR WILL BE NAMED UPON
PETITION OF CONTESTANT.
County Clerk overrules Objection TO
probation - Several Witnesses
Testify at Yesterdays Hearing.


County Clerk John Howard wells.
sitting as probate Judge. in the
matter of the probate Of the will or
the late Henry Schmulbach. ordered
the will probated following the sub
mission OF testimony yesterday AFTER.
noon. Attorney John A. Howard,
who appears with Attorney J. NJ.
Ritz for Mary Anne Teller, contes-
tant. Informed the court that he
wished TO object to the probation ana
asked that a curator be named. he
then gave notice OF an appeal TO he
circuit court.
The hearing. the third for probate.
was held in the assembly room OF the
county commissioners office. Wit
nesses summoned by the contestants
and by the executors were examined
at length. Prominent among these
were Mrs. Eva Pauline Bertschy-
Schmulbach, NJ. Z. l.. Yeager. Hon.
J. p. Arbenz. John c. ZiegenfeIder
William Seidler and Oscar F. Nolte.
Witnesses to VIII Called.
William Seidler was the rrst Wa
ness called by the attorneys for the
executors. On direct examination
Mr.. Seidler told of being called from
the German Bank building April &.
1915 TO the offices. of Hubbard ana
Hubbard where he was asked to be
witness to a paper purporting 20
be the last will OF Mr.. Schmulbach.
oscar F. Nolte. who works at the
German bank with Mr.. SeidIer, was
the second witness called. His testi-
mony was similar TO Mr.. Soldiers.
In the course Of his examination ne
said that at the time OF the witness
ing OF the will Mr.. Schmulbach was
as strong, physically. and apparently
mentally. as he has been In the past
eight years.
On cross examination he identified
: the signatures of himself. Mr.. Seid.
Ter and Mr.. Schmulbach. and SAID
that in his opinion the now deceased.
was altogether capable OF making a
will and OF disposing OF his property.
The witness said that Mr.. SchmuI-
bach, showed in his actions about the
bank, that he was in full control or
his mental faculties. Attorney n. L.
Hubbard gave notice that the execu-
tors rested.
i The testimony OF these two men.
In the opinion of persons in attend
ance at the hearing entirely enmin-
ated the contention OF the contestant
that Mr.. Schmulbach vas not com
petent TO make a will At the time the
Will which was admitted TO probate
was drawn.
Il Mrs. Sehmulbaeh Testifes.
Mrs. Schmulbach was the first wit.
ness called for the contestant. she
told, in answer to Mr.. Towards cues
TONS, of her marriage to Mr.. SchmuI-
bach on November 20. 1912. After in
troductory questions were asked. NJ.
Howard put the following question to
the witness:
\ y. ! have in my hand the petition
that Is signed by Messrs. T-Sbbard a
hubbard as attorneys for petitioners.
In which you and Mr.. wager appear as
petitioners, petitioning the court to
probate this viii. and in this petition
you say this; Your petitioner, Eva
Pauline Schmulbach. who is named in
said will as a residuary devlsee and
lagatee. would have been entitled. in
case said decedent had left no will, to
take the full title to the country home
OF said decelent. being all OF the real
estate Of which said decedent died
seized. by virtue OF an antenuptiaI
/ contract When was the ante-nup-
tial contract you mention there
signed?
Mr.. Hubbard: To that ouestion we
object, on the ground that the ante
nuptial contract has no bearing on
the question Of whether this Is A valid
will, and that question Is the only one
with regard 10 which this court is en-
powered TO sit and Judge.
Court Sustaina OBJECTION.
The nblnTffQn wa awalafpaH
Mr.. Howard DO you mean that
your Honor does not permit us to 20
into the contract?
The Court. Yes. sir.
Mr.. Howard: That grows out OF the
confusion in going into the probate of
the will instead OF the rule. want TO
!eNamine her on the rule
Mr.. Hubbard. ! want the probate OF
the will to proceed. II there are any
side Issues. they may come up In due
order.
Mr.. Howard That would be a con
fusing proceeding that would deprive
us Of seeing this ante-nuptial contract
before We proceed further with out
contest The ante-nuptial contract
that spe mentions o. said 10 give her
certain property. she says that IN her
petition. Now. there is a rule for her.
requiring her to produce the paper.
and ! am now inquiring with a view
10 locating that paper or determining
whether she ought TO be ordered 20
produce ~ or not.
Mr. Hubbard don't think the zen.
uemen are entitled 10 20 into that
matter 40 AL The paper could not
possibly have any bearing on the pro
bate Of the viii n that paper gives
any rights or takes away any rights
Inconsistent with the viii Itself that
matter would be- adjusted In differ
cnt court from this
Mr. Howard But this court has
issued rule for her 10 appear here