The New York Herald Newspaper, July 12, 1876, Page 11

a THE COURTS. The Trial of Taska, the Alleged Crooked Whiskey Dealer. ALLEGED ILLEGAL CONSTITUTION OF THE JURY. Dr. Foote’s Poor Plan for In- creasing His Practice. Contest Over the Property of the Late City Surveyor Boyle. In the caseof tho United States against Philip’ H. Taska, indictod on a charge of being implicated in the alleged whiskey frauds, argument was had yesterday in the United States Circuit Court, before Judge Bene- dict, on plea to the indictreent under which Taska was tried and convicted. Counsel for the defendant alleges that the indictment is vod because, as contended, the Grand Jury was improperly constituted; on tho ground that the number of the panel was not as re- quired by law; that the Grand Jury was not drawn by Dallot; that the jusy lists were not certified by the clerk; that there was no list properly prepared from whjch to draw the jury; that no order was made by thé Court as to what part of the district the jury should be drawn from; that there was not 4 sulliciont number of qualited jurors in session at the pending the indictineni, and that there were on the panel Uon-rosidents ana persons over age and others not-having the necessary property quaiitications, General Foster delivered along and ablo argument, sustaining the legality of the proceedings, the indict- ment, trial and conviction, to Which General Tracy, on behait of Taska, replied al considerable length yester- day, and in support of the plea, General Foster would have closed tue argument dn behail of the prosecution, but Judge Benedict preterred to have a written answer submitted, and adjourned tho case till Luesday next, SEN’ ‘CE OF DR. FOOTE. Judge Benedict hela court yesterday for the son- tence of prisoners and the hearing of motions. Dr. E, B. Foote, convicted of sending obscene matter through the mails, was arraigned for sentence. Judge Benedict uddressed him, saying that he was a man of sufficient intelligence to appreciate the position into which he Was brought by the vioiation ot the law. He himself felt it to be his duty to discriminate between various Classes of this offence, and therefore had oxamined this case with care, He found that the obscene pamphiet had not been distributed with a view to a profit arising from its sale, but with a view to obtain practice as a result ‘of its circulation. Under the circumstances, us the Doctor’s patients might suller if he’ were imprizoned, and as gmany per- sons had called to seo him with regard to the case, he would sentence bim under the fourth count to a fine of $3,600, and would suspend sentence under the first count, under which ho was liable to ton years? im- prisoument, The prisoner handed up a long Statement to the Court, supposed to be m exoneration of bis acts or explanatory o( the motives aciuating Imm in dis- tributing the’ offensive pamphlet, which, be alleged, Was not intended by himn to secure pecuniary beactits to himsolf, but to be of service to humanity. The Judge, in court parlance, took the document, but re- served his opinion thereon, MRS. JUDGE M’CUNN'’S CONTEMPT. ‘The widow of the late Judgo MeCunn, instead of en- Joying the cage and comfort which her late husband Intended to securo to her by his property, seems to have acquired taereby only an mberitance of trouble, pecuniary embarrassment and annoying litigation, Last week ste was betore Judge Goepp, in the Marine Court, on a motion to punish her for contempt, in not buving appeared to be examined under oath, in obedi- ence to an order to that effect. The result of that mat. tor was that sho was tined $100, to bo paid in thirty days, and the exumbnation ordered to proceed two days subsequently. On the adjourned day failed to appear, and yesterday she was a Judge Goepp on another motion to punish tempt for tuat non-appearance. Hér oxcuse was that she uid pot clearly undersiand the matter, and had been informed that she need not attend, The Court excused her tor the contempt, but ordered that she pay $10, costs of the motion, aud proceed at once with the ex. The Court also appointed Spencer C. Mostia rin the case, The judgment in which these proceedings were had is for ‘about $200. The Court also, on motion of counsel in a case in which another small judgmeéut had been obtained against her, granted another order for Mrs, McCunn’s examination in supplementary proceedipgs. THE LAW OF ATTACHMENT. Solomon Sommerich and Joseph Sommerich sold foods to Fannie Stone to the amount of $398 80, which she failed to pay. Plaintiffs then commenced a suit against her to recover the amount and obtained an Autachment against her property on the ground that she was about to dispose of it, with intent to defraud ber creditors, Yesterday, before Juago Goepp, in Marine Court, Chambers, a motion was made on be- half of defendant to vacate the order of attachment. The’ motion was opposed by Messrs, Kurzman and Yeaman, on afiidayig to the effect that at the time ® makihg the purchase from plaintiffs defendant mis- represented the amount of her indevtedness to others; that she had withdrawn $12,000 from tho savings bank within the past few days, and now holds it 1 her possession, refusing to apply it to the payment of her Gevts, and that she 1s about disposing of her property, with the same fraudulent intent, The Court retused to tucate tho attachment. ONE OF THE JAY GOULD SUITS. In the suit of Isaac M. Bussinger ve. Jay Gould tor $15,000 damages, for his failure to fulfll one of the Black Friday contracts, judgment for the defendant npon plaintifl’s failure to appear was heretotore granted by Judge Donohue, with costs and $850 allow- ance. Judge Westbrook yesterday, on the aflidavit of plantiff, issucd an order directing defenaent (Gould) to show cause Why the Judgment should pot be va- cated and Set uside, on the ground that piaintiff has procured the evidence necessary to prove the coniract within the statute of frauds; why the order tor such allowance should not be set aside on the ground that te Court had no power \o make ttand that it was made without notice to plainuil, SUMMARY OF LAW CASES, The argument on the motion to quash the indict- ments in the case of Philip Rowegone and Julius slug- Jech, charged with alleged Custom House frauds, which was to have been heard yesterday, was postponed till the 18th September next. The examination of A. B. Cornell, Vico President of the Western Union Telegraph Company, in supple- meutary proceedings was tiled yesterday in the Su- rior Court. The examination Was in a suit brought y the First } ank of Brandon, in which @ judgment tor $1,250 78 was obtained against Mr. Cor- neil. The mination showed that aside from his salary Mr. Cornell has but little property other than low paymg stocks. Mr, George B. Prescott was ap- pointed receiver of bis property. DECISION 8. BUPREME COURT— CHAMBERS, By Judge Westbrook. Denwith va, Budke, &c.—Motion denied. Dowley vs, The Western Union Telegraph Company. — Motion granted. Audenried vs. Litenfeld.—Order granted. Stubben vs Schroff.—Has notice been given to the other side? Eleonore Bowles vs. William Bowlos.—Decree of divorce granted to the plaintif. In the watter of the application of Caldwell.—am- davita not full enonga, In the matter of Preston, &c.—Refused. SUPREME COURT—ciRCUIT—PaRT 2. By Judge Van Vorst. Boergold vs. Puchia —Motion for a new trial denied, SUPERIOR COURT—SPECIAL TRRM, By Judge Curtis. Flanagan vs. Connor, &c.; Bramson va, Connor, &e.; Hayzen et al, va Coleman.—Undertakings approved. Meath vs, Felton et al, and Blanchara ve. Deery.— Plarntiffs’ complaints dismissed, Coffin ¥s. Scott ot al. and Barbey vs. Barbey.—Refor- ence ordered, Dallis W. Lee vs. Adelia A. Lc0.—Report of referee contirmea. Lim ted divorce granted to plainuf, Kichards vs. Gould et al —Motion denied, Mackintosh vs. Cass.—Order for Commission. ‘The National Park Bank of New York vs Bucking.— Order amenaing decree. Whelin vs, The Third Avenue Railroad Company.— Order for judgment dismissing complaint, with costs of demurrer and costs of action to detendant Dearing vs. Coristie; Graham vs. Livermore et al and Walker vs. Isaacs. Orders granted. By Judge Sedgwick. Hauselt va, Vilmar ot al.—Order settled. COMMON PLEAS—SPECIAL TERM. a ige Van Hoesen, Benson vs. ‘acupp.—Motion denied, without tosts, See memoraudnam, Wiilioms vs. Briiton,—Motion deniea, Burke vs. Gardner.—Motion denied. See momoran- dum. wv ind vs. Rice.—Taxation of clerk affirmed, Glendenning vs. Rank.—Motion granted on terms. Bee memorandum. By vudge Van Brunt Ross ys, Tho Ri Mutual Lite 1 et al. —Order vacated as to Forbes and McAdam. Mo- tion to vacate denied as to the parties defendant, with costs in each case. Cleary vs. Brewster.—Motion granted, with $10 costs. The Pottier and Stymus Manufacturing Company va. Smith.—Motion granted, with $10 costs. Amadell vs. Garde.—Motion granted upon payment of $10 costs of this motion. MARINE COURT— CHAMBERS, By Judge Goepp. Moyers ys. Matthewa.—Motion to open default granted on payment of $5 costs. er vs. Gedney; Lyous vs Sulzer.—Bonds ap- rove i Sommerich vs, Stone.—Motion denied, witn $10 costa. Blake vs. Sulman.—Motion to vacate order of arrest denied. Clark vs, MeCunn.—Spencer C, Mustin appointed re- ceiver. Swit ve, Crossman. —William T. Farnbawk appointed referce. Kabno vs. Kabn.--Commission ordered. Clark vs. McCunn.—Order directing payment of costs ‘on contempt. Wright va. Lyles —Order directing defendant to pay over amount, with costs. Mayo vs, Bryan.—Motion granted. GENERAL SESSIONS—PART 1. Before Judge Gildersleeve. BLACKGUARDS BOTH. The entire session of this Court yesterday was oo- cupied tn the trial of a case of assault and battery similar to those usually tried atthe Tombs. Thomas J. Reynolds, alias “Pete” Reynolds, alias “Guerilla,” appeared complainant against Thomas Noble, the proprietor of a dance and lodging house at No, 358 Water street, He stated that on the night of June 6 ne hired a room from the accused and that a short time after taking poxseasion of it in company with a friend he was ordered by Noble to clear out, and upon his refi to uo sv, having paid forthe room, that Noble iited him with a club in a savage manner. Chauncy Shater, counsel for defence, tu a long cross- exginination showed that the complainant was a des- perate character, who had served Yarious terms in prison for assault and battery, and who was for a long time the terror of the Fourteenth ward. Asasist- ant District Attorney Herring showed, in a manuer equally clear, that the accused was a man of the most dangerous character, who bad been in the hands of the police for assaults again and again, Arcades ambo was the.opinion of the jury, who found a verdict of guilty. ‘The Court remanded Noble for sentence ull to-morrow, / PLEAS AND SENTENCES. A youth namod James Hegan pleaded guilty to snatching a gold watch aud chain and locket from the Person of George Ott, Jr., of No. 351 East Forty-ntoth street, in Second avenue, on July 1, and was sent to the Houso of Retuge, William R. Pittman, alias John Kelly, of No, 20 Alien Street, called at the store of Solomon & Co,, No. 657 Broadway, on Juno 29, and representing himself as tho agent of a Boston firm obtained a quantity of prop- orty which be subsequently sold at the storo of Shep- pard Knapp & Co., Sixth avenue, Boing arresied subsequently he pieaued guilty and yesterday was sent to the Penitentiary for one year, William Anderson, who broke into the premises No, 870 Lexington avenue and stole # quantity of lead pip pleaded guilty and was sent to State Prison for two arf one-balt years. George lurner, a waiter from Hartford, who on July 3 stole a marbie clock and a coat from the oftice of the United States Mutual Lite lusurance Compauy, No. 261 Broadway, pleaded guilty and was sent to State Prison for two and one-half years. WILL OF CITY SURVEYOR BOYLE. In the matter of the contested will of Edward Boyle: deceased, an interesting question of law has been caised which will make it, when decision is passed upon It, a legal precedent in time to come. ‘The deceased Boylo was a well known city surveydr, having had Intrusted to bim eeveral undertakings of great public utility and importance. Among these was the surveying and sub- sequent supervision of the laying of the Kingsbridgo road, Mr. Boyle bad acquired a fortune estimated at some $100,000, and in the latter part of his life he had given out he had no encumbrances or prospective heirs in the way of cousins or other relative to stand between him and the disposition of his property as he might deem fit, and as it appears there was no one who seemed to claim relationship with him, in 1866 the deceased made a will bequeathing all his prop- erty to bis wifc, ono child having subsequently been born to them, bat which died in Italy while himself and wife were seeking health and recreation in travel. Before leaving this city on his European trip he made a codicil to his will, in which recognizing, as be set forth in it, the dangers and perils of yavel by-sea and Jand, he added a provision that in the event of his own and his wite’s death by uny calamity befalting them at the same time the House of the Good Shepherd should inherit the whole of his property. In the clause pro- viding for such a-contingency he says:—“It is my will that ii my said wile and myself should perish by the same calamity or accident the devise shall be void and the bequest to the House of the Good Shepherd should be valid and effectual”? Mrs, Boyle, who accompanied ber husband to Europe, while sojourning at Rome was attacked with malarious fever, her husband suffering i ighter degree from the sume complaint; they hastened to Paris, where both died in a few days alter their arrival, Mr. waccumbing to the disease three da} iter bis wife’s death, which occurred on the 12tn day of April. The will and codicti are now presented to probate by Vicar General Quinn, repre. senting the House of the Good Shepherd, Mr. John McKeon acting as his counsel. Tho wiil is contested by Mr. William J. Cowley, who claims te havo been a first oousin of the testator in his Mietime, represented by Mr. Malcolm Campbell. The contestant claims that the will and the codicil making the bequest of the estate and property of the deceased to the House of the Good Shepherd was in- tonded for the one expressed contingeucy only —that of Mr. Boyle and bis wife perishing or coming to their deaths by tho samo accident or divine visitation, apurt from ® natural death, and that no such contingency haying arisen, but having died a natural death, with three days apart, the bequest is void, and the ostate must go to the heirs at law. 18 is also claimed that,’ under the statute of 1860, a person dying, having 4 wife, 18 prohibited from bequéathing more than one-hali of his estate to any chari- or religious or educational institution, ad that if the codicil is mot entirely void it is only applicable to one-half of the estate ol the de- cedent; that the House of the Good Shepherd, havin, already received very largo legacies and devi exceeded the statutory restrictions upon o tive property permitted to such or similar corporations, and that, therefore, tt is incompetent for the House of | the Good Shepherd to take the present bequest. It is | further ciaimed that the codicil was procured by un- due influénce; that Mr. Boyle's mind was in his hietime seriously impaired by epileptic pttacks, and that tho bequest was in contradiction of all the deceared’s re- peuted declarations as to the disposition of his prop- erty. The Surrogate will hear further argument in the case on Tuesday next. COURT CALENDARS-—-THIS DAY. Suramun Count—Cnaunxrs—Held by Judge West- brook.—Nos. 5, 82, 33, 34, 36. 44, 45, 53, 55, 74, 76, 82, 92, 94, 133, '134," 138, 181, 201, '205, 208, 216, '218; 219, 220, 221, 222. CouRT oF GENERAL Sxasions—Part I1.—Held by Judge Gildersieeve.—Tha People vs. Robert Smith, jonious assault and battery; Same va, Charles Ship- felonious assauit and battery; Same vs, Edward Ryan, fetonions assault and battery; Same vs. James McDonough, felonious assault and battery; Same vs. Alvert Kessicr, felonious assault and battery Sume vs. John Mapson and Martin Paterson, rape; Same vs. Charles McManus and Charles White, be gf Samo vs. Albert Howard and John Riley, barglary: Same ys, John Boyle and James Clark, grand larceny ; Saino vs. Michael Purdey and Henry 'M. Welsh, grand larceny; Same vs, George Smith, grand larceny; Same vs. Annio Same Mulholiatd, grand larcen: vs. Eh O'Brien, grand larceny; Samo vs. ceny ; Same vs. Wolf Cohen, misdemsanor; Samo va. Davi robbery; Same va. Annie Lawies, robbery; Ya. Gotloid ‘Schweizer, felonious assault and bat- Same vs. James Curren, felonious assault and battery ; Same vs. Edward Baclie, grand larceny ; Same vs. Mary Hagan and Ann Meaba, grand larceny; Same vs. Julia Chegel, grand larceny; Same vs. Henry Stew- pow Seay larceny; Same vs, Bridget Connol, grand NOT PROVEN. Rosalie Rebecca McGonigle, a canvasser of patent articles, was arraigned in the Court of Special Sessions yesterday, before Justices Bixby, Dufly and Wheeler, charged with the larceny of a pocketbook containing $17 Irom one of the boarders in the “Young Ladies Christian Home,” No, 26 Bond strect. The evidence was not conclusive, and the defendant was discharged. INDISOREET CURIOSITY. | tion of funds, and a cause of action for violation of Miss Fanoy Davenport, for two weeks past, has been annoyed by a number of young boys who gathered on ashed overlooking her room, and constantly cried out, “How is them blue and white stockings?” On Monday night two of these ungallant youths, Frederick Herbert and Joha J. Finnegan, employed in a jewelry factory adjoining the theatre, were captured. At the examination betore Justice Duffy at the Washington Place rolice Court yesterday afternoon evidence was given as to the a ce of the lady members of the company. Justice Dufly roleaved the their own recognizauce to keep the peace ‘or six months. COOL, DESPITE THE HEAT. John Knowles, a painter, of No, 52 Allen stroct, was brought before Justice Wandell at the Tombs Police Court yesterday afternoon charged with entering the store oi Messrs, Pomeroy & Plummer, at No. 63 Leon- ard sirect, in the forenoon and stealing « piece of cloth ed. 2 Mr. Plummer canght him leaving the erty in lis pommession, was f Fiith precinct, and it of $1,000 bank ” AN IMPORTANT LITIGATION. ACTION TO WIND UP THE EQUITABLE LIFE AB- SURANCE COMPANY. In the Supreme Court of Kings courty an action has been brought by Mrs. Emily C, Belding, of Brook, lyn, against the Equitable Life Assurance Soclety of the United States, Parker Handy, James M. Halstead, Henry G, Marquand, Jobn Sloane, Henry 8. Terbell and Thomas 8. Young. The complaint shows tbat the Equitable Lite Assur- ance Company isa corporation under the act passed June 24, 1853, for tne sole purpose of transacting the business of life insurance; that 1t 1s a mutual life insur- avoe company, except that it has a capital of 1,000 shares of $100 each, in all $100,000, entitled to dividends at seven percent per annum; that the codefendants are directors and managers of the affairs of the society and familiar with 118 business transactions; that this action is one of common Interest to all the directors of {ne company, and that those named as defendants are joined to represent all the directors, of whom there are fifty-two, The complaint next shows that the plaintiff on a cer- tain day contracted with tie defendant for a $10,000 policy of insurance, ior the term of her nataral lite. ‘Ihe complaint further alleges that, except the seven per cent. paid to the holder of the $100,000 stock, the persons !usured are ENTITLED TO ALL THE SURPLUS PROFITS of the business of the society, and that under the policy the plainuit! is entitiea to an equitable share of the protits, less an equitabie contribution to the lawful and necessary expenses of conducting the business. The complaint further shows (nat, in order safely and properly to transact the business of life assurance, it 18 hecessary that a sum should be invested euch year, to accumulate by the time the plainuif’s policy shall be- come due apd payable; (nat such bum is cailed the resorve ol the policy, the rate of interest in this State for the calculation of the reserve being four and one- halt per cent. per annum; and that according to the laws of this State, the tenor of its charter and its cove- nant with policy holders, the Equitable Lite Assurance Society is bound to Keep invested a sum of money to protect the policy of the pla and each of the policies of the same ciass as the pianuft’s and all Policies, It is likewise alleged that the plaintiff has duly performed all the, terins aod conditions imposed on her in tho policy, GRoxs TRAVAGANCE CHANG The complaint theu proceeds to allege that the direc- tors of the Equitable Life Assurance Society, in viola- tion of the duiy they owe to its policy holders, have invested im real estate and expended out of the moneys belonging to the society and its policy holders, about $5,009,000 in the purchase of jand and in the erection ot costly and gorgeous edifices in New York and Bos- ton, and in costiy furniture and adornments in viola- tion of the laws of the State, to wit:—In a burlding on Broadway and Cedar street, New York, in the extension of suid building, $1,500, 0 editice in Boston, $1,000,000, edifices are not occupied by the society in the transac- lio of its business, but that seven eighths thercot are for rental to other corporations and persons, for pur- poses and pursuits other than life insurance; and that there are thirty or forty other persons and corporations occupying the premises in New York. ‘This real estate, it is alleged, was not and is not necessary for the tran- saction of the society's business; was not mortgaged to it for loans or for moncy due, or conveyed to It in satistaction of debts, or purchagod nt sales upon judg- ment decrees or mortgages obtained or made for suc’ debts. The complaint further alleges that in the building in ‘ew York there are five steam elovators kept cou- stantly in motion at an enormous expense in construc- tion and working; that the directors propose to erect a lar.e addition to the original structure by adding to the height thereof several stories, with the vain ambi- tion of making it the highest and most costly structure in the city; that this ts not for the use of the soctoty, but solely: for DISPLAY AND GAUDY suOW. It is further alleged that the $100,000 stock is all owned by the officers und directors of the company, and that they thereby bave the control of allthe money nd assets of the society, and that the policy holders have no redress or mouns of stopping the extravagant and reckless expenditure of the jety’s money, which ought to be preserved forthe benefit and security of the policy holders, except by application to the Courts, although the assets of the company, amounting to over $24,000,000, are all ownod by the policy holders except the $100,000 owned as stock by the stockholders, ‘This reckless extravagance of the management of the society, it is alleged in the complaint, bus become a topic of general remark amoung business men in tho community, greatly to the injury of the business of the society, and plaintif believes (bat unless the large and lavigh ‘expenditure is rostrained by order of the Court, The Equitablo Lite Assurance Society will SOON BXCOME INSOLVENT, id that ifa rigid and impartial exami jon into the affairs of the society be made its available funds would pot be found sufficient to meet any sudden emergency whereby any large numbers of its policies would become due and payavle. The reckless extrava- gance, the plaintef alleges, has continued for several years, and the longer continuance of it willrender the Society incapable of pertorming its part of its contract of insurance with the piaintiff, and render her policy worthless; that this gross extravigance is indulged for | iilezal and private ends and without color of law, and bas ‘brought great weaith te the oflicers of the society, while it has been greatly to the damage and insecurity of ail the policy holders. A RECEIVER AND AN ACCOUNTING ASKED FoR, Plaintiff demand: That the Equitable Life As- surance Society of the United States, its officers, di- rectors, agents and attorneys, be enj: ined from spend- ing any more money of the Society in the creation, completion, extension or furnishing of the buildings in this or any other State. 2. That the officers and directors render to the Court anacceunt of the lands bought and buildings erected thereon by them, and all tho appurtenances thereof, and the expense ‘of furnishing ard of useless orni ments in and about the same, and that they be com- pelled to take said buildings, appurtenances, furniture and ornaments at the cost price thereof, and to pay the me over to the society. & That a receiver be appointed to receive from de- fendants the sum of money to be paid by them for tho benefit of the policyholders, and to tnvest the same. 4 That an injunction iseue and a receiver be ap- pointed during the pendency of this actio 6. For sach further and other reliet as shall seem just. affidavit confirmatory of the allegations respect- eo New York odifice ix appended to the complaint, as are also copies of advertisements issued by the Society, Oy to the Court A DEMURRER ISTRRPOSED, The defendants, except Sloane, Terbell and Mai quand, have putin ademurrer to the complaint, T: grounds of the demurrer are:— 1. That the Court has no jurisdiction of the subject of the action. 2 That the plaintiff has not legal capacity to sue. 3. That there is a defect of parties piarnuiff in th: 1, That no stockholder is joimed as plaintim 2 That the Attorney General of the State of New York is not part of piaintt. 4 That there t made partion, 5. That several causes of action have been improp- erly united, to wit—A cause of action for misupplica- charter, 6. That the complairt does not state facts sufficient to constitute a cause of action, That the plainti® docs not show that she has any action was begun, tho passage of a bill through the Legislature of this State has been pro- cured. wh'ch authorizes insurauce companies to the buiiding In which they have their offices, and the ground on which it stands, DIVORCE SUIT. Tho diverce sfit of Rebocea E. Philbrook va Henry B. Philvrook was dismissed by General John H. Ber- gon, referee, in Supreme Court, Brooklyn. The order Ot recognition was issued Monday, by Jadge Joseph T. Barnara, on a motion of plaintit for custody of chil- dren, Denied, BROOKLYN BOARD OF EDUCATION. Ameeting of the Board of Education of Brooklya was hold yesterday afternoon, at the Headquarters of the Board, in Red Hook Jano. As there was to be a reorganization of tho Board, and election of officers considerable interest was manifested in the pro- ceedings, Tho chair was occupied by Mr, ©. J. Whit lock, the President. The candidates jor the position of Superintendent of Public Schools wore Mr. Thomas W. Field, the present incumbent, — Mr. Buckley, the present Assistant Superintendent and Protessor Horace B. Sprague. Mr. Ficld was elected by & majority of seven votes over Mr, Buckley. His election was not le unanimous, Mr. ©. J. Whi lock was re-elected president, there being no opposi- tion. The Committee on Salaries reported in favor ot paying the present salaries. Upon a motion to adopt the report of the committee there way considerable debat The report was finally adopted without alteration. ‘A resolution was offered providing for the appoint- ment of a second assistant superintendent. This was referred to a joint committee to report apon. PROBABLE HOMICIDE. Oa Monday afternoon a gi of rowdies, inciuding several from this city, went over to Guttenburg, N. J, where they purchased a keg of lagor and rolled it into the woods near the residence of the late Mr, 1). 8. Gregory. Alter a time tho men became intoxicated and quarrel. some At this state of affairs Thomas Whalen, who resides at West New York, near Guttenburg, became involved in a quarrel, when his assuilant flung Piece of stone at him and fractured hi: all, Wai of arrest were issued yesterday, and several arrests are expected to take place shortly, NEW MINING COMPANY. ‘Tho certificate of ineorporation of the ‘Consolidated Silver Mining Company, of Maine,” was filed in the County Clerk's office yesterday. The company is organized for the purpose of mining, reducing ores, and for the purcbuse, working and sale of min- ing property. The capital stock of the company is de- clared to be $1,000,000, to be divided into 10,000 shares ot = each. . Messrs, Willis Gaylord, Charles V. Ware aod F. 4, Babcock are the corporators. | absolutely declined to remain o: SEA CLIFF SAINTARIUM. AN OUTBURST OF PIOUS INDIGNATION-—THE CAMP MEETING DENOUNCED AS A SPECULAT- ING FRAUD—PRO! LE CHANGES BY AND BY. Ska Cure, L. L, July 1, 1876. “The wrath of the Lamb” is a soriptural expression that I have never been fully able to comprebend. The lamb-like characteristics are so diverse from anything that we conceive of as counected with anger and wrath, But I recerved a new exposition of it to-day on Sea Cliff dock I said in my letter yesterday that the Sedgwick would want water to-day, and hence would keep the camp meeting folks three-quarters of an hour on the dock awaiting her owner's pleas- ure, Though not a propbet nor the son of & prophets my prediction was more than literally fulfilled, As I announced yesterday, Dr. Thomas Armitage, of the Fifth Avenue Baptist church; Rov, William Lloyd, of Washington square Methodist Episcopal church, ana Rey, J. H. Lightbourne, of tho Seventeeth street Methodist Episcopal church, New York, were announced to preach to-day. They were advised to take the Sedgwick, which left Thirty-third street, at half-past nine A, M, and they would reach the Cliff at eleven A. M., the hour for service. Dr. Armitage was on the dock at ten minutes past nine A. M., So that there should be no delay on his part; but imagine his feelings and his surprise when be lett that pier for Sea Cliff just twenty-five minutes before the hour at which he had been advertised to preach, twenty-six miles distant, Ip bis ministry of moro thar forty years, as the Doctor told mo here to-day, this is the first appointment to proach that he has failed to keep; and he thinks if he had had command of the Sanitary scow, as some of his more irreverent neighbors styled the Sedg Wick he would have brought her inte port much sooner than sbe arrived here. But all protests to the boat hands were mot with a sneer or a remark that indicated that the boat owners were getting square with the C. M.A. Starting from Thirty- third street at the hour named she reached tne dock at Sea Ciiff at one o’clock, with a party of clerical and lay visitors as hungry as hawks, so tbat their first thought was the restaurant and dinner, Dr, Armitage, as everybody who knows him will admit, is an ex. ceedingly modest and mild ‘ispositioned man; but what little of the old Adam remains in bis nature yet struggled for expression yesterday at THY APPARENT IMPOSITION thus put, not only upon"him, but on many others who had como to hear him, There were somo irom Green- point and some from Jersey City Hoighta, as well as from Brooklyn aod New York, who had come for that purpose, Meantime the little congregation of just seventy-cight persous—according to count—sat patiently until about twenty minutes of twelva o'clock hoon, When on jntormal prayer service was held tor hall an hour, and Rev. Mr. Wilh, the director of the services, inude # briet address on the human side of Conistiauity, as well as the Godward side toward which he thought Christians are too much inclined to lean, Dr. Duncan, the blind preacher from Georgia, who is here recuperating, was prompted by Brother Willis’ Words of encouragement in view of the disappointment which the people felt, to say that in his ministry of forty years he had never so realized the appropriate- ness of remarks made, hymns sung or prayers offered as those that be had just listened to, He thought there was good ground ior encouragement, Alter din- ner the company who bad arrived here hastened to the dock to catch the boat which, though coming in late, it was said, would start promptly at two P. M. for the city, so as to make her secoud tmp up. They hud to wait there for half an hour, while the Sedgwick cavorted around Glenwood and Roslyn and Mott's dock. 1b wos not a long delay, compured with that in New York in tke morning, but it was the straw that broke the camel's back. ave Tarely witn Lioyd, Parker and ry twice that number of laymen declared they would write a card to the pavers, over their own signatures, giving their reasous for declaring Sea CI p meeting & pious swindle, 1 offered them material at the time to express their wrath, but they preferred to wait and attend to the matter when they were less excited and could not be charged with undue haste. But, oh! how they must bavo longed at the moment to be free from the restraints of religion that they might curse this conevrn roundly as it deserved, This was the occasion and these the circumstances where and tn which I received that new interpre ofthe wrath of the Lamb. Here it was that Sea was styled THK METHODIST SANITARIUM andthe Sedgwick the sanitarium scow. Mr. Lloyd, who had been invited to preach here in tho evening, moment longer than he was compelled to, or 10 give the countenance of his Presence to the imposition, The Rev. Lindsey Parker came here on a begging expedition tor hia church mm Ansonia, which 1s heavily in debt, He gathered’ just enough to pay his expensos and “though invited to stay and make an appeal this evening in behalf of his church he declined, and, baving lost nothing and gained nothing by his sit, he, too, left the encainpment among the indig- nant ones. Kev. J. H. Lightbourne was to preach in the evening. but I bi uim deciine because his con- regation left by the bout. And though there were alt a dozen ministers staying on the ground it was deemed prudent to omit an afternoon service alto- gether. r. 8. H, Tyng, Jr., is to preach here to-mor- row morning, but I would suggest, as a measure of prudence, that he come by the railroad and bring his congregation with bim; for it hardly pays muiyisters like Drs. Tyng, Armitage and Lloyd to leave city con- gregations of 1,000 or 1,560 and come up here to preach to fifty or seventy-five well preserved Christians, Clit. fites tell me that (here are not Jess than 700 people rest- dent here, so that they furnish about one per cent to the general congrogation. This 18 a small percentage for a pious place Ike Sea Clif’ 1m camp meeting time, Here, too, 1m this indignation sing I learned what I did not know when I wrote yesterday—that rum was sold on board this pious association's boat last Sunday, This 1 @ specimen of total depravity that I was pot prepared fof and which shocks many of the innocent ones to day. Brother Willis made as good an apology as could be made for such a condtvion of things to-day and de- clared. t he had done a'l that he could ao to mako the meetings @ success, But they are DEAD FAILURE. Indeed the camp meeting idea under which the associ- ation hold their charter (und onty to hold which they keep up the forms of camp treeting) bas disappoured. Several of the trustees, theroiore, favor giving deeds, instead of leases, to the lot owners aud withdrawing altogether as a oluge corporation, and let the jot owners: obtain 4 village charter and elect trustecs for them- scives, Two or three men are not ready tor this, how- ake the big fortunes yet, which within their grasp last took wings and flow They will probably yield by and by, when a tess shall be made and they find that rpo- tion they capnot legally impose or cotiect one dolar tax from any lot owner on the Cliff. They now impore $6 a lot and $6 more of water tax for every house tbat is thus supplied. Governor Tildon put his veto ona | charter for Chautauqua Lake which contained such a Provision, on the ground that the State cannot constitu. tionally delegate its authority to impose or collect taxes: to any private corporation. This 18 sound logic as well as law, And I understand that Governor Hofinan ob- jected to this provision in the Sea Cliff charter, vut ‘was persuaded that it was pecesary for the purpose of reserving the camp meeting ure inviola- ble, But the pious iaea having been vol untarily or by force of circumstances pushed only nominally retained in the Bement of this pico the necessity for this taxing clause no lougor exists. Hence, though several lot owners have retused or neglected to pay their taxes for 1875 up to this time, no legal means have been taken to exact the sume. There are nearly 200 cottages of all sorts and sizes now on this ground, and botwithstand- ing the hard times abont a dozen new ones have been ce Juat jail, Ail future erections must be & plan approved by a committee of the built here Tabernacle is likely to be torn down and a first class suminer hi bai mi te, The present Sea Clift House (the management of the culi- nary departinent of which the trustees have very wisely given over toa man who undersiands that business, which they do not understand), 18 to be converted into a young ladies’ seminary or a seminary for pupils of both sexes, This proposition has the sound of common sense about it, NEW YORK STATE LOAN AND TRUST COMPANY. The affairs of the New York Stato Loan and Trust Company, now in the hands of the Central Trust Com- pany of New York as receiver, are stil without any chance of immediate final settioment, The depositors bave been all paid and the stockholders are now awalt- ing tho result of a number of suits pending in the courts and for other payments beiore beginning to think ot a dividend. According to present a the affairs of the company will not be finally year, MUNICIPAL NOTES. Tho tollowing subscriptions were yesterday received by the Mayor for arsisting destitute Arabs at present in Bellevue Hospital:—Phelps, Dodgo & Co., $50; KH. Perkins, Jr., $25; R, J. Morrison, 35; D. C. Calvin, $5; R. F. Macy, $5, Mayor Wickham has also subscribed 25. George J. Smith bas been appointed a City Marshal in place of Damet Gillespio, resigoed. No meeting of the Board of Apportionment was held yesterday, The attachés of the Court of General Ses- siony, Part 2, bi not yet received their ries, and they are anxiously waiting for the action of this Hoard. It 1s necessury to pass a rexolution appropriating money to meet this expenditure, and prompt action is required to deiray the jegal demands of the suffering officials, The Tammany Hall General Committee will meet at the Wigwatn to-morrow evening. Arrangements will then be perfected for the Tilden ratification meeting of the 25th inst, wow YUKK HERALD, WEDNESDAY, JULY 12, 1876——TRIPLE SHEET. | THR STEWART ESTATE The Surrogate Sustains the Probate of the Will, IMPORTANT DECI ON. Surrogate Calvin rendered his decision yesterday in the case of the contest of the alleged hoirs to the estate of A, T. Stewart, upholding the probate of the will and adversely to the claims of the contestants. The pro- ceedings wore instituted upon an order to show cause why the protended probate of the instrument pro- pounded as the last will and testament of Alexander Turney Stewart, deceased, a8 a wi!l of real and personal estate, and the apparent decision thereon, should not be adjudged void, revoked vacated and set aside, This order was based upon the petition of James Bailey, in his own right, and on behalf of the otber collateral relatives of said Stowart named in the petition. The petition alleges that the petitioner and others named therein are collateral relatives of the full blood, and heirs at law and next of kin ot the late Alexander Turney Stewart, who died April 10, 1876; that the paper bearing dato March 27, 1873, purporting to be tho last will and testament of said Stewart, ap- pointing Henry Hilton and William Libbey executors and Cornelia M. Stewart executrix thertot, and the codicils thereto, one dated March 27, 1873, and the other March 28 of the same year, were in the ovening of April 18, 1876, proeented to the Surrogate for pro- bate; that on the 14th of the samo month letters testamentary wero issuod, and said will and codicils were recorded in the Surrogate’s office as duly proved, That no citation or notice to appear was issued or di- rected to be served upon the petitioner ur any of the heirs at law or next of kin, as required by Jaw, nor issued to or served upon the Attorney General of the State; that no opportunity was afforded petitioner or any of said heirs, &c., to require all the witnesses to said will, &c., to be summoned or to request other witnesses to be examined or to be present at or contest the proof of said will; that the probate and record room or office, but privately, in unusual haste, on the day of tho funeral of said Stewart, without notice to petitioner or said heirs; that said papers are not the Jast will and testament and ecodicila of said Stewart; that they wero obtained and the execution thereof by said Stewart was procured by circumvention and un- due ipfluence practised upon him by Henry Hilton or some other person unknown to the petitioner; that petitioner and others of said hoirs contest the probate of said will, On the retura’ day the widow, Cornelin M. Stewart, filed her answer to tho petitioner, which sets forth xub- stantially her marriage to the testator on the 16th of October, 1823, and that she lived with him as hia wife in the city of New York until his decease, April 10, 1876; that sho bas no knowledgo or information suificient to form a belief whether the petitioner or the persons named are collateral relatives of her said bisband, and therefore demes the tame. [hat the applicution for the probate of the will and tho proofs thereot wero publicly and openly made. + Henry Hilton als filed an affidavit setting forth that he know deceased intimately for over twenty yoars; that he drew the will and codicils under the direction of the testator, who was in the full vigor of his intellect and memory; that no other persons were present when such directions were given; that he did not influence or attempt to mfluence the testator, and does not know ot any other person doing #0; that he had frequently heard him say that he did not know of the existence of any dood relatives, as bad been generally stated in the newspapers in this country and in Europe; that he had bocn a freqnent guest at his tablo, and had never secn any person whom he recognized us a blood relative, Wilham Libbey, the other executor, filed his aMid: ‘it of seventeen years. Ho was general manager of the wholesale business, and in July, 1867, became a part- ner of the firm of A, T. Stewart & Co., and contioued as such to his death; that their intercourse was con- stant, and that so far as it was possible for one man said Stewart actually and personally controlled his said business until within a few days of bis death, This practice was constant alter March, 1873, as before. That {rom his knowledge of the deceased no undue in- fluence could control him im making his will or in do- ing any otber act in reference to his property; that ho blood relative of bis, or that he acknowledged any such, bat it was generally understood that he had nono, and deponent #0 believed. give evidence of the fucts set forth in the petition by production of witnesses; but the motion to d.smiss on all the papers was elaborately argued on both sides and submitted for the purpose of decigion, gument of this motion have discussed with groat carne estness the force and effect of the facts set forth in tho respective answers and iflidayits prosented in their be- balt ana urged the improbability of the alleged undue influence upon the testator by Mr. Hilton and by others unknown, bat itis clear to my mind that this motion to dismiss must be considered upon the assumption that the allegations contained in the petition are true, and no benefit can be derived to the parties making the motion, from the tacts alleged by them, for the motion is based upon the ailoged absones of reasovable ground set forth in the petition tur the opening and vacating of the probate, and if the answers are to be regarded they must be accepted as forming issues of fact for tho purpose of presenting proois = to_—establish those issues, and the petitioners would be entitl-d to the opportunity to prove the aliegations set forth in their petition, with leave on the part of the | proponents of the will to cuntradict them and show the | truth of their averments. The petition, after alleging that the petitioner and others are collateral relatives of the tail blood and b at and the next of kin of the testatur, states that the will and codicils were [pa stated to wl urrogate onthe 13th day of April, 876, and application made for their admission to pro: bate and record, and that letters testamentary wero issued onthe next day, and the said will and codicils Tecorded in satd office as duly proved, without citation to the petitioner or the other porsous alleged to be heirs at law or next of kin, a8 required by chapter 460 of the ‘Laws of 1837, and without citation upon the Attorney General of the State, and that thereby the claimant was deprived of tue opportunity to require all the wii ness: to said will to be produced and examined, or to require other wittesses to be examined, according to the act of 1841, chapter 129. It appoars by the petition of the widow, duly ver !- fled by her on the 13th day of April, 1876, and on which’ the petitioner moves und which was preseuted to the Surrogate, praying for probate of sald wilt and codicils, that “the widow, only heir’? and next of kin of suid. deceased, was the ‘petitioner; that xaid deceased lett him surviving neither father, mother, brother or ter or descendants of any or either of them, or any joendants of bis or any relative or next of kin of said deceased. On this proot aud on the taith of the allegations contuined in said petition the proceedings ot proba ken, and upon the assumption of their truth it is entirely ciear that there was no need of issuing citations to to oxist, Tho third subdivision of rection 6 of chap. ter 460 of tho Laws of 1837 provides that if the will relate to both real and personal estate the names, places of residence of the heirs, wiiow and moxt of kin of the testator shall be axcertained by the Surrogate, by satisfactory evidence, and section 7 provides that the Surrogate shall there. & ‘itation requiring the proper persons to lend the provate of the will, and pre- in facts which shall be alloged in the cita- Section § provides tor the service of such citr- Section @ provides that before proceeding to the proo! of any will the Surro shall re- quire satis\actory evidence, by altidavit, of the sorvice of the ottation, in the mode prescribed vy Jaw. The proper persons referred vo in section 7 are evidently the heirs at law and next of kin, if any exist, In this case the Surrogate did ascertain by satisfactory evi- dence, and by the oath of the person, mont likely to know, that thore were neither heirs at law or next of kin, and the provisions of the statute referred to were fully complied and complete jurisdic. tion =obiained for the purpose of probate. It is important, first, to determi the power of this court to open, vacate or modify the probate in thia cage, for, while the petitioners’ couosel invoke that power as a matter of right, it is objected by the counsel for the exccutors and executrix that as to a will of real eatato there is no power to vacate ur modily the de- tion to probate. First—Beoause the probato is not dependent upon an order or decree of the Surrogate, but upon proofs on which he Is required to make his certificate whoreby it becomes only prima facie evidence. Section 15, 2 I paging 58, statute providing for the filing it @ will of personal property within a year after its probate makes no provision tor the re- view or opening, Vaoatiog or revoking a will of realestate, «and, = to sanstain this latter point, the ease of the will of John Kelinm, 50 N. Y., 208, is cited. By section 21, chapter 460, of the Laws of 1887, concerning proof of wills, &c , it 18 provided that the Surrogate shail enter in bis minutes the decision which he may make con- corning the sufficiency of tho proof or validity of any will which may be offered him for probate, and I think 16 quite clear that tue admission of the will in question theroof were not made publicat the Surrogate’s court. | stating bis acquaintance with the deceased for upward | had never heard or known of any one claiming to bea | After the answers ani aMfdavits wero ied in opposi- | tion to petition, counsel for the petitioner offered to | Counsel for the executors and executrix in their ar. | persons thus clearly proved not cision oF decree admitting the will aud coaicrls In ques. | to probate was a decision or determination of thie court upon the proois submitted, . The Surrogate thea quoted Campbell vs. Logan, Pew vs. Hastings, 1 Bar- bour 46 ley v Banckus, 24d page 316. The authority in the Kellure will, 50 Barbour, does not sustain tbe principle urgec by counsel tor the executors and execatrix, There is bo intimation in the decisions that the Bur | Fogate has not the power to open a@ deerce of probate of a will of real estate, The learned Judge im that cuso holds that the effect of a probate of a will of personal property, and of real e-tate diflers; as te real estate, it is rot conclusive either us io the validity, or due execution of the will; but as to the probate ol & will of personal property it 18 conclusive, until t same be reversed on appeal, or revoked by the Surro- gate in the manner provided by the statute, or the will be declared void LF a competent tribunal.’ The Judge also states the reason why, in the one case, tho statute vides for the making Of allegations within one year, the: provision of that kind respecting @ will of real but there is no intimation, in the opinion of that Court, that the Surrogate bas pot tho wer agsan incident to his office, to opep, vacate, of modify a will of either kind. The authorities avove considered leave no reasona- ble doubt in my mind that this Conrt has the power, ina proper case, 10 set aside, open, vacate or modily the order or decree admitting a will ot realestate to probate, ‘ Bat if any such doubt oxisted prior to the act of 1870, chapter #59, it seems to be fully removed by tho language of the first -ection of ihat act made applicable to the Surrogate Court of the city of New York, the Jatter clause of which reais as follows:—*And the said Surrogate shail have the saine power to set aside, open, vacate of modify orders or decrees of the said court, as is exercised by courts of record ot general jurisdiction.” The terms and scope of this power are certainly very ampic, That courts of goncral jurisdie- tion have power to set aside, open, vacate or modify the orders or decrees 18 pre-supposed by the section in question, and it is a power which is gen- orally exercised for the purpose of correct- ing mistake-, and relieving agafost fraud, &c., and I understand the power conterred by the section last named to be equal to that exercised by a Court of Equity, ona bill filed tor tho purpose of obtaining reliet against a judgment, or decree, for fraud or mistake. 1u the matter of Bricks’ estate, after a most oxhaust- ive discussion of the question, Chief Justice Daly 15, Howard 12, at page 36 concludes as follows:—“That the courts may undo what bas been done throuzh fraud, or upon the supposition that they had juris. diction, or upon the assumption that tho party was dead, who is living, or that there was no will—or they may open decrees taken by default or correct mistake: the result of oversight or accident.” “Theso are all powers existing of necessity, and indispensablo to the inietr tion ot ju: ed any other nature or character. under which may be ¢ cixe of jurisdiction of a like And this decision, be it rem dered, was mady- prior to the act of 1870, Having reached the conclusion that I have the power to entertain the petition in this matter, it becomes nevessary to determine whother the peti- tioner may invoke that power as a legal right on whether he addresses himself to the discretion of t Court, whieh discret oud be exercised with a ju: regard to the interest respective parties, From €n examination of the various authorities on the sub- Ject ang of t..e act of 1870, Lam persuaded that th tition should be regarded us an appeal to the discretion of this Court and not as a matter of absolute right. Ii it should appear os a part of the record that the decrce sought to be vacated was absoiutely void, it scoma te mo that the opening or setting aside of such decree would be a matter of discretion, the retusa! of which would be justifiable and would pot be reversed on ap- peal, while in a clear case of equity uncontradicted though adiressed to the discretion of the Court, if de- nied, 1t would be reversed ou appeal. It is objected by the petitioner's counsel that the surrogate in this mat- ter obtained no jurisdiction for the purpose of ad ting the will in question to probate because of the al- | leged existence of heirs-at-law not cited, and that, | therefore, the decree is absoiutely void. Witbout at present passing upon the question whether a decree absulutely void is ior any purpose an obstruc: tioa to the enforcement of the alleged rights of the _po- titioner itis suflictent to say that. on the prof far. nished to the Surrogate in this case he obtained juris- diction over the probaie of the will If, as 1 inuat ase | sume for the purpose of this proceeding, the petttioner | 38. an heir, it canuot be denied that by the settled prac: | tice of this Court he was entitled to an opportunity ta | resist the probate of the will in quostion, and that if his relation to the testator had been known'and recognized | veiore the probate of the will he would lave been in: | cluded in the citations and alforded an opporsunity of | being present at the probate; and 1 he had been next | of kin, so as to have entitled him, but for the will, toa share ‘of the personal property, there would be no doubt of bis right tu an opening of the probate, so far | asthe instrument propow i was a will of personal | property is concerned tne cases of the Public Ad- ministrator vs. Peters, 1 Bradford, 100; Skidmore vs. Davies, 10 Paige, 316; Vreedenburg | 127; Bloom vs “Burdick, 1. Hill, | Merritt, 3 Bard., 341;' Sheiden N.Y. 497; Si vs, Wattle, 16 Y., 180, | cited by the counsel lor the petrtioner seem to sustain | his right to'such an opening of the decree; butit | claimed on the part of the counsel for the executors and exeoutri: the diseretion that as this application is addressod-to Court, its exercise may well bo {the aiffereuco im the effect ot the probate of a will relating (o personal property and one relating to real estate; and thts brings me_ to ‘the consideration of ‘the final and more ie portant question invo.ved in this proceed. ing. It ts enurely clear that this Court thas no power to grant to the petitioners any aflirmative rellet by which ibeir rights to ihe real estate in question may deterin I{the probare should be opened would | the pet er be in any better position to enforce b: alleged claim to the real estate left by tho | testator thin he ld af the probate remaived; | he must take proceedings in another court by eject= ment or partition and must there show that he isan heir entitied, and when he has shown that the produc- tion of the’ probate would not be even prima facie evidence agaainst bis right unless the party interposing the probate as an obstacle to the petitioners’ claim | could show alfirmatvely that the petitioner was duly | cited on the provate, and if he were so cited, under well settled authorities tn such cases he could attack | the validity of the will as though it were uever proved, Axain, suppose the will had not been proved and t heir should bring ejectment, he would have to produ some evidence of his title and the devisee in the will would be compelled to produce the will, with saitic evidence of its due execution, so that, in any event, the opening of the decree would not relieve the peti- toner Irom any embarrassment in respect to the proof of his title, but it would add somewhat to the burthen of the devisee in proving the execution of the wil It was urged by counsel for the petitioner that under the statute of 1870, already cited, there was no authority fcr the claimant to raie the question as to the absence of jurisdiction of the Surrogate to probate the will ex cept by un application to the Court to open or vacate the probate, appeal. am inclined that uny objection to juris diction or otherwise in respect to the probate of the will in question or its validity or due execution may be raised in any proceading instituted for the purpose of enforcing ® claim to the real estate, aud that the statute of 1870 would uot affect a person who was not made a purty to the probate, It isto my miud entirety clear that in every pro- ceeding end in all stages of an action, evan on appeal, the question of jurisdiction may be raised and must be met. On the argument it was urged by counsel for the executors and executrix that the moving papers did not show probable gr will in question it oft Mr. Hilton influencing Mr. Stewart Teal estate to his wife, who would seem to b. right to 1t, while Mr. Hilton, as be was not interested in the real estate, appeurs to have had no motive for the exercise of such influence. But in this case ft would be unprecedented, uw weil as unjust for this Court, in passing on a prelim. inary motion, to open a decree for (be purpose o1 enabling the petitioner to prove, not by aMdavits but by competent proot, to determine the ultimate merits of the case, nor 18 tt proper that I should express any opinion on’ this preliininary proceeding upon the sub ject of such an alleged improbability. Beside, as the will was made at the same time in reapeet ‘to both kinds of property, and by the same testator, It undue influence cold be proved it might be quite dificult to deterinine that the influence did not affect the will in ail ite points, Some observations and experience have led me to deplore the growing irreverent disregard by heirs at jaw and next of kin of the last wills and testaments of those who by honest industry and prudence may have acquired a moderate competence, Or an abuudanes, and who pursuant to law havo pre: sumol to li stow their pittance or their fortune, ac cording to their freo will, resulting in the dissipation of fortanes as well as tly concord by dishonorable and unseemly legal contesta, until the performance o! a solemn duty has become an occasion of anxiety, lest its attempted performance should prove seriously de- trimental rather than beneficial to those who are just objects of testamentary bounty, These evils are more telt and deprecated by those of moderate means thaw by the wealthy, and in a very great majority of caset where wills are executed the amounts devised or bo queathed are small; and yet upon such meagre boun- ties depend the sustenance and comiort of an affoo tonate and loved helpmeet and tha education of beloved and dutifal offspring, the solace of venerates nts, of, perhaps, aid and encourgement ol sone worthy Christian charity or public benelaction. The interierence with the deliveraie and intellige! disposition of estates should not be encouraged, and particularly should the practice of encouraging exper! ments to overthrow last wills and testaments by allow. ing contestants to receive from the estates compenta- tion for their anwarranted assault upon them be dis- couraged, and contestants, in caso of failure, should be held to a rigid rule ot good faith betore they receive an ailowance trom the estate, The questions involved in this proceeding are important, delicate and not oasy of solution because the wuthorities Pend few treating lusions there While the law should be ad- ministered with care alike im cases involving small and jatge amounts aud with absolute impartiality, yet Jn « cage Of the unprecedented magnitude ot this pro- error can be corrected. | ceeding ly to effect such vast interests and cual. lenge pu atteftion, it has seemed to mo that oxtta- ordinary gare and diligence should be observed | stag upon the questions involved. If Lam right in my estimate ot the effect upon the alleged rights of the joner and those whom he assumes to represent 19 the opening of the probate it that it would be an unwise and unjust exercise of the | tion of this Court to open the probate where no hg cal and substantial benefit can enure to them, while # would be likely to throw discredit upon the tenare et the real estate devised to Mrs. Stewart and.paralyge the great enterprises now in progress, For the reasons above siated the petition should be dismissed. | HL. Clinton, William A. I KE. Davies and H. H. Anderson tor executors, Judge Hilton and Mra Stewart, W. O, Bartlett, E, Root and W. D. Booth for petitien- ern,