The times-news. [volume] (Hendersonville, N.C.) 1927-current, 1937-05-25
WILL CONTEST CASE
ENTERS SECOND DAY
Continued from page one)

Shown a deed, drawn to him by
his father on April 10, 1888, he
admitted that he accepted the
deed and borrowed money on the
property to pay back taxes.
He was asked about suit
brought by parties against Mr.,
Toms during his last illness and
said it was to clear property sold
by his father, but he testified that
his father did not understand the
purpose of the suit due to his
mental condition, or was misled
concerning the suit.
He admitted that he went thru
bankruptcy, listing liabilities at
about $27O,000 and assets as
second hand automobile.
Asked if he had a child, dead
for four years and not buried,
he said the body was being kept
at a funeral home until he could
make arrangements for the pur-
chase of a cemetery lot.
He admitted that he was extra
dited from West Virginia and
tried in Buncombe county court
for non-support, and said that
settlement had been made in the
case at trial.
He said that he had sued his
mother-in-law for alienation of
his wife's affections, said he did
not remember the amount, but
that it. was as much as $l0O,OOO,
and that he was awarded $500 in
the action.
In explaining, he said the suit
was brought more for the purpose
| of restraining his mother-in-law
| from interference in his family
affairs than for the collection of
damages.
He estimated the property set
tied on his mother in the separa-
ton at about $4,000, and, on re.
direct examination, he estimated
his fathers estate at between
three and four hundred thousand
dollars at the time.
Before the noon recess was Ia
ken caveators called Sheridan
Fisher. who lived at Osceola lake
| from 1917 to 1928 and told of
seeing Toms and Mrs. Bude to,
gether 40 or so times. He said
that at times he had smelled whls-
key on Mr.. Toms.
T. j. Hyder told of his CONVEX
sations with Mr.. Toms about spir-
itualism, but said he had never
smelled whiskey on him. He said
he believed him incompetent to
make a will on account of his be-
lief in spiritualism and for other
reasons. At a district Republican
convention, he said, Mr.. Toms was
asked to make few remarks and
talked for some length of time.
The first witness called this
morning was J. H. Ballenger, tax
collector, and former sheriff. lie
testified that he had seen Toms
and Mrs. Dude together number
of times about 1923 and that he
| had seen him "pretty often" since
his return here and that he drank
a right smart" He expressed the
opinion that he did not have the
capacity to make will.
THREE WITNESSES HEARD
FOR THE PROPOUNDERS
Yesterday afternoon propound
ers first called f. l.. Ewbank, one
of the witnesses to the Will. Mf
Ewbank testified that he saw Mr.
Toms frequently and expressed
the opinion he had capacity To
make will on April 10, 1888. Or
cross examination he said he mac
never seen Mr.. Toms under the IN
fluence of whisky and that he was
not under the influence when th'
, Twill was signed. :,
4 On further questioning, ne salI
. he had heard Mr.. Toms talk OF
spiritualism, and heard him say
! that he had talked with his dead
father through a medium. :.
DR.. w. X. Kirk, the next wit
ness called, testified that he at.
tended Mr.. Toms from about
August, 1886, until his death, and
saw him on an average of about
three times a week during the Pc
Rod. He said there was nc
change in Mr.. Toms mental CON
dition and that his mind was clean
ITO the end. AS one of the wit
nesses to the codicil of Septem,
Der II, 1886, Dr.. Kirk testlflec
Mr.. Toms had capacity to make
will at that time.
On cross examination counsel
for caveators went into lengthy
examination of Dr.. Nirk on the Ill
ness of Mr.. Toms. Examination
by hypothetical questions estao'
lished a condition of heart. liver
and kidneys which DR.. Kirk said
might be produced by excessive
use of alcohol or worry OF ooth'
and that such a condition might
affect the mentality. -,
However, Dr.. Kirk testified, the
mind was not affected in the case
| of Mr.. Toms, and, on redirect ex-
animation, he repeated his .opn-
ION that Mr.. Toms had capacity TO
make will.
Miss Louise Davis, who served
as stenographer for Mr.. Toms Tor
some time prior to his death, tes-
tilted that she saw him almost
every day and never saw nm
DRINK or under the influence OF
whisky. She expressed the opin-
ion he had capacity to make the
will She declared that she typed
the codicil and attached it to the
will, and did some other work Tor
Mr.. Toms on the same day.
The other papers, offered IN