Evening star., 1939-03-15
t-
Court Of Appeals
Urges Thompson
Case Review
Recent Decision Held
Overturnine Practice
Of Lost 30 Years

Counsel for John Lewis Smith, ex-
ecutor of the will of Mrs. Wena D:
Thompson, petitioned the United
States Court of Appeals today for a
rehearing Of the case before the full
tribunal and pointed out that if a
recent decision stands, it would over
turn a 30-year practice in this juris-
dlction and leave "our trial justices
with no yardstick with which to
measure such instructions in the fu-
ture" to juries in will cases. Ordi-
narily, three justices hear a case,
Filing the petition were John Lewis
Smith, John Lewis Smith, jr., and
Alfred L. Bennett. -
They recalled that the case was
heard more than two years after the
death OF the testatrix and required
approximately two weeks to try:
that the testimony of 80 witnesses in
all was presented-8 for the caveator
challenger of the validity of the
Wild and "a for the caveatee.
John w. Thompson, son of the
testatrix, challenged the validity
OF the will. The United States
Court of Appeals held recently that
an executor can waive the privilege
attaching to physicians, attending
persons in their last illness, but re-
versed the case on the ground that
instructions to the jury were con-
fusing. The appellate courts opin-
ion was a divided one, Chief Justice
Alfred A. Wheat of District Court,
VINO sat on this case, handing down
a minority opinion, in which he con-
tended that the instructions to the
jury were clear.
Technically Contended,
Counsel today contended that the
decision was made on a technicality
and the case should be reconsidered.
The issues presented to the Jury
for its consideration were clear-cut
and when their verdict was reached
after a careful consideration of all
the evidence, it cannot be denied
that the caveator was given a fair
trial. particularly in view of the
comprehensive, clear and impartial
instructions given by the court"
said counsel today in their petition
Tor a rehearing presented to the
appellate tribunal.
1T is respectfully submitted that
the majority opinion, reversing as it
does the ruling of this court in
Robinson VS.. Duvall, overturns the
practice in this Jurisdiction of more
than 80 years and leaves our trial
justices with no yardstick with which
to measure such instructions in the
future. 1t is apparent from the
opinion OF the majority that isolated
statements were taken from
lengthy and well-considered charge
and no consideration was given to
the complete instruction which We
submit gave to the jury the law
OF the case as 1t has been under
stood in this District for a long
period Of time. The jury, not having
had the benefit of such segregation
as is made by appellants assign
ments Of error and this court, could
not have been misled.
Sees r-Reaching Effect.
May we suggest that by employ
ing the same method of reasoning
the intention of the trainers of the
Constitution. of the United States
could be defeated entirely and the
provisions Of that document could
not be construed with any degree Of
certainty. The reversal by the ma
jority in this case, with its resultant
delay and expense, both to the Gov
ernment and to the ntigants, un-
necessarily adds to the congestion
existing in our courts and engenders
widespread criticism of the admin
istration of justice.
I'VE again respectfully request
that a rehearing be granted before
the entire membership of this
court" the petition asserted.