10 Sep 1908 Ellwanger Will Contest D&C
THINK ACCOUNTS RIPE FOR PROBE PROTESTING ELLWANGER HEIRS OPEN THEIR CASE. MANY CHECKS PUT IN EVIDENCE The Alleged Missing Balance of $123,000 in Nurseryman's Bank Account Is Being Sought-Raines Sought-Raines Sought-Raines Scents Simultaneous Action Morning and afternoon sessions of Surrogate's Court yeaterday opened the hearing ot objections to the issuing of letters testamentary to William D. Ellwanger Ellwanger on the estate of his father, George Ellwanger. Charles J. Malloy, confidential bookkeeper to the dead nurseryman during the last years of his life, was the only witness to be examined examined and the questioning which he underwent all tended to show that the opposition rests Its case on alleged Irregularities Irregularities in the accounts of the estate before and after the death of the testator. testator. Adjournment, was taken late In the afternoon until 10:30 this morning, when Mr. Malloy will again take the stand. New faces appear among the attorneys attorneys for both sides of the controversy. In place of the late William A. Sutherland, Sutherland, who represented William D. Ellwanger Ellwanger during the contest which came to an end In July, appears former Supreme Supreme Court Justice Nash, of Avon. George Raines and John Desmond appear appear for Helen and Margaret Ellwanger, the contestants, and William T. Plumb replaces H. 3. Bacon as guardian for Julie 3. Ellwanger. Mrs. Alexander Otis Is represented by Harvey F. Remington and Florence E. Watson by Frank Hone. As to Will Contest Testimony. In opening his side of the case Mr. Desmond asked that testimony adduced In the will contest be made available in the proceed. ng begun yesterday. There was some controversy over this matter, but the Surrogate Hnally ruled that evidence germane to the matter in hand 6hould be admitted, adding that the two proceedings were entirely distinct and that the contest had been settled in its entirety. The examination of Mr. Malloy was lightened by the introduction of a number number of checks as evidence. These checks were drawn in favor of William D. Ellwanger and of his brother and co-executor, co-executor, co-executor, George H. Ellwanger, who died April 23, 1906. Mr. Malloy testified that they were drawn by or in favor of the, brothers when one or the other-had other-had other-had power of attorney In the matter of their father's .estate and while the elder Ellwanger was Buffering from the ailment whinh cajsed his de-tth de-tth de-tth December December 2ti, 1908. Mr. Hone objected to the introduction of checks drawn by or In favor of George Ellwanger, eaying that the present action was against William D. Ellwanger only and that his brother's acts could hav9 no bearing on the case.- case.- In answer to the objection Mr. Raines eald: "The concurrent acts of William D. and George H. Ellwanger appear in the Bchedules of the bank accounts of the estate In such a way as to suggest sympathetic action. There are checks among those offered in evidence for $5,000 or $10,000 each drawn on the tame date in favor of each of them. What bearing this fact has on their acts must be considered later In the case, but we want to prove now that the actions actions of these two were sympathetic and were equally advantageous to each." Amount ol Bank Deposits. It developed from the examination that from Novenlber 6, 1903. until the time of the testator's death the bank deposits deposits In the name of George Ellwanger totaled about $370,000. Payments during during the time mentioned to the two sons of Mr. Ellwanger were about $221,000 end other disbursements of nearly $20,-000 $20,-000 $20,-000 were shown on the schedules submitted. submitted. Mr. Raines said that the difference difference between the balance, about $125,000. and the actual sum remaining remaining in the bank, about $2,000, would be one of the subjects to be considered during the hearing. The examination of Mr. Malloy con tinued In much the same strain through j the afternoon. Just before the time ot adjournment Mr. Desmond tried to find whether Mr. Malloy had told Mr. Ellwanger Ellwanger about the state of IiIb bank account account or whether Mr.. Ellwanger had ever asked for any Information on the lubject. Vigorous objections were made lo this course of questioning and sustained sustained by the Surrogate. In the discussion Mr. Raines reiterated reiterated his statement that the opposition opposition to William D. Ellwanger's appointment appointment as executor would contlue Kb efforts efforts to prove collusion between the two brothers In their management of their father's estate and to show that they had manipulated the property during during the testator's illness very much to their own advantage. Here the session was closed. The Surrogate will pass opon the admissibility of the questions Ibout Mr. Ellwanger's knowledge of the Itatus of his bank account.