28 Jan 1908 Ellwanger Will Contest D&C

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28 Jan 1908 Ellwanger Will Contest
AND CHRONICLE, TUESDAY , JANUARY 28, 1008. JOHN DESMOND filAKES FINAL ARGUMENT FOR REJECTION OF CODICIL TO ELWANGER WHL Says Battle Between Raines and Ely Will Become a Classic in Medical Jurisprudence Pays Attention to Mrs. Georgia Williams. j PROPONENTS TO HAVE INNING TO-DA The lat jilcft n, ai'isitiniiit In'liehulf of HHeti am) .Murxiirct Kllwamrnr, the (.'(interning h'iirs v the ,0i)(i.(ii) (iciire KllwaiiKer eKtnto, w made ywturilny liy John Uesmornl. Mr. nemnond bottaii bin iimiDttry Friday rooming, but ilinni-tinucj it at mioD Kridny to allow Mr. Hainn. to sum up, an Mr. Rainra wt obliged to be in Itlnglmtnton yeswday to cimcitict the ditwiisn for A. VV. T. Back, county troamirer of Brwrnie, indicted for misappropriation of funds. Mr. Desmouil'g nummary wns a review of this great man of twitiinony that had adduced in over a yea of IkiKutlon. Par ticular attention wn glvon to the, testi mony of the proponents' witnessen, Mr. Desmond cailine attention to apparent ilia- .'Tepencie. in ihnlr stories aii'l calling upon th. Court to decide ythkh wan truth and which untruth. M WilHaro A. Sutherland will begin his want Mrs. W ill.atns theni, . Imt w.mlrl rntuer have hr than fleorge II., beiau it he came he would rule eviM Ythinu. Tha your Honor, was the first (lomiuioa prac- nreu y ueotrre U. Kllwangcr orer hit fnlher after the death of Mrs. Ellwanaer "Mrg William says her first arrange- meiit was for three months. We know she stayed three years. Do yon think aha could have done this if it had not been eorge II. Ellwanger who wished it? X, khe could not have remained and alio could not have gained, entrance to the house had it not been the wish of (feora-e II Mr. Desmond read from the testimony or mt. imams when she wa first on the atand, ''I reeall nothing of unpleasant ness tietwoen Hie fiuuily of Edward 8, KJUvanger and the old people." Hut aft erwnrds. said Mr. Desmond, away along in the litigation she dug up a letter and apparently framed up what she thought the letter was in answer to. " Impsached," Says Desmond. morn ing. He haa annouiued that he will re quire two d.v, hut there is a possibility that he -II oonelnde in shorter time. At! Keferring to the testimony about the ...r cm,. -...- , 0I te tw d04,,or. ,lm tjme miiry hip r.ii wm ft mi" mi. iihi.ub j vei uncate or Incapacity was given. Mr, .-MimrKii ii? .i-iurii n. ei'inii trn- i .rfliiHiiHj llinulrcn ir it ' In resmnlnir hl eitioniarr yewterday mortiiiijr, Mr. Desmond explained that he would confine himself principally to two witnesses, Charles Maloy and Mrs. Geor gia William, becaiwe he did not wish to drajf out his argument, There were other witnesses worthy of bin attention, said Mr. Desmond, Referrin,! to the makiut; of the codicil. Mr. Desmond cited the principals of law that should surround such an act. When a codicil is hostile to the iiTOvisions of the will, proper cnuso must he ehown to allow the codicil to be probated. Making of the Codicil. Mr. Hunn tentilied that Maloy tele phoned to him to come to the home of George Ellwanser on January 0, HK4, aaid Mr. Deamond, and Mr. Maloy testified that he did not. Mr. Maloy testified that Mr. Hunn told him Mr. EUwanRcr was Koinir to execute a codicil, and he was asked to aien his name beside that of Mrs. Williams and he did so. Maloy says he did not remember any thing snid to lilm by Mr. Lllwanner, or even whether Mr. Ellwanger said any thing" continued Mr. Desmond. lne only thlug he could remember was that Mr. Kllwanirer bowed his head when asKeu the It'ital question and that Mr. Ellwauger erected him when ha entered tne room with. 'Hello. Charlie,' On this conversa tion, Charles Maloy swore that ho considered George Ellwanger in his right mind, "Is It possible that this witness, Maloy, who had an luslRht Into all the Ellwangcr financial proceedings, did not know of any increase in allowances when from the time George U. Ellwanger was taken ill until the time of bis death his bank account dwindled from $340,U0 to only (580, the greater part of this money being lias natcd for the benelit ot William u. and George II. Ellwanger? Is it believ-uble? Prior to January fl, 19M. George Ellwanger kept his will In the private drawer In the office itafa. George H. Ell- .... . . .. wangee had the key. (ueaauif ir. m.v Iot's testimony.) 'Some time before that dnte, msye days or weeks, George II. gave me the key and aid hw father wanted the will. I got It and took it to George Ellwanger. The day after Jnnunry Oth, I told George H. that the will In the origi nal envelope had been returned to tne and vas in the safe, and I suggested It had better be taken to the Rochstor Trust and Safe Deposit Company's vault.' " Result ot Conscious Guilt." "Why this circuitous route?" inquired Mr. Desmond. "Why did George H. put Maloy between himself ami the will, as If afraid the touching of the will would taint him? Here Maloy takes the will and George H." the key. Why? Couldn't one man do It? Why was Maloy made the bodyguard of George H? It was the result ot legal advic by someone. They anticipated trouble. These and other things indicated that they knew the real condition of the mind of Mr. Ellwanger. These actions were the result of conscious guilt." (u the day the codicil was eigucj, said Mr. Desmond. George H. Ellwanger and Mr. Hunn came to the house and on beiug told that Mr. Ellwanger was little worse ordered Margaret Scherer to rouse Mr. Ellwanger and dress him. Mr. Hunn had said to wait and do It somo other time, hut George H. had said no, because Dr. Ely had said Mr. Ellwanger would never be any better. j Mr. Desmond recalled Mn toy's test!- mnny that he did not remember any checks I for larger amounts than $10,000 when less than a' year before he took three checks for S'JS.OOO and drew the money Himself, giving bonds he had taken from the vault himself a collateral. "What has happened to Maloy ' mem- VV . aKe,l .Vir. I ieHiii'iiiu, ntinet .n-i- lov. trusted Maloy, impartial Mai"). The testimony of Maloy does not Maud worthy of much credence. It is too meager, m the first place, and in the second place ho knew what George II. and William D. Kllwanirer were doing. Was he an un prejudiced witness for persons who he be lieved would con'ro! the future of tne company by which he was employed: Testimony ot Mis. Williams. At the afternoon session, Mr, Desmond paid particular attention to the testimony of Georgia Williams, sister of Mrs, George H. Ellwanger. Her testimony was con tradicted by that j of Maloy and Hunn, Mid the speaker. He told of M's. Williams's introduction to the fniutly of George Ellwunger within a few days of the death of Mrs. Ellwanger. "Mrs. Williams says he remained at the house at the letiuest of William D. Ellwanger," Mr. Desmond continued. "That is preposterous. She is not the one William 1). would have selected for the s.am purpose that George H, wauted her. George II, insisted ou her remaininu. George H. put her there to wateh tuid sec that nothing prejudicial to his inter-rsta occurred. Margaret Scherer says George II. Ellwanger declared that if Mrs, Williams didn't remain he would more in himself. Mr. Ellwanger said he didn't obvious that Mrs. Wlti.m. i, .i.. waa going on. If not, why was she so i-uri.i-u.ar tnat Margaret Scherer should not overhear what was being said in the library? Vere ,ne Hjmi,8 MmlflllH nm "I'd testihed to such as to re quire secrecy, even from Hits mm. i ten years' servio i Uie family? Itefer- "i.g to Mm. Williams as "that. woman," Mr. Desmond declared she stood impeached. Ho said there was not one bit of evidence to show that she was not thoroughly aware of the Weakened condition of Mr. Ellwanger's mind during the t"-miu uuuer tiiscnsslon, Mr. Desmond read Mrs. Williams' first testimony about the pleasures alway vapresseo. ny uie testator at visits by Helen and Marearet, The stories told by Mrs. Williams on her return tn the utand "to defend the codicil"., and their uisagreement with each other and with stories torn ny other witnesses were held up. ueaiting .Mrs. Williams's testimony that Margaret Scherer was diseharecd because they believed she WSS tnsnna V Desmond compared it with that of William v. I'.itwanger that Margaret was dig-charged because she disagreed with the omer nurses. "Whore is the suggestion of insanity? ssked .Mr. Desmond. "Will your Honor care m go beyond the statement of William D. Ellwanger? 'If you can't get along with the nurses, you will have to go.' There 1s no coherency or harmony in tnis woman s testimony, She testified to protect the codicil and she was willing io say anyming to pronate ths codicil." Those Christmas Prsssnts. Mr. Desmond next took up Mrs. Williams's testimony regurlg the Gbrutt-mas gifts to Helen and Margaret of books ot poems written to George H. and William I). EUwauger. Mr. Desmond held that Mrs. Williams had done the selecting and that that set showed her attitude at that time toward Helen and -Margaret. Conflicting stories of Mr, t-n . nnang;rs prx in me transaction were pointed out, as was Mr. Ellwanger's weak condition at the time. Margaret Scherer's testimony as to Mr. Ellwanger's apparent lack of knowledge of Uie gifts of the books was read. "And now this woman calmly sits there and tella you that he said 'Get one of George a books for Helen and one of William's books for Margaret'!" sarcastically exclaimed the lawyer. "Margaret 12 or 1.1 or 14 years of sge and Helen five years older, and Mr. Ellwanger knowing the feeling existing between the families! let this woman would have you believe that George Ellwanger In Ji; normal mind would have been the perpetrator of tins insult. "I may be mistaken, but the conduct of this woman in the management of these Christmas presents was revolting to any man or woman who has the heart of a parent." Preponderance of Testimony. Again taking up the question of Mrs. Williams's knowledge of the condition of Mr. Ellwanger'a mind, Mr. Desmond went into it in every particular. H said: "Is that woman s earing to probate that codicil? There are sixteen wit nesses, your Honor, who have sworn toN the failing condition of the tcxLiOor'i mind. Hut this woman saw no lapse of any kind in Mr. Ellwnnger'a mind, mind or speech. There is a problem of veracity of this witness. 1 would call attention to the same testimony given by her iter, Mrs. George H. Ellwanger, and she, your Honor, has a cool $50,IKK) at stake in her eudeavor to make this man appear of sound mind up to April 14th nr least, the time she received the checks." Mr. Desmond read testimony as to delusions of Mr. Ellwanger and of how Mrs. Williams had tried to argm him out of them. If he had believed the testator of sound mind why did she try to argue hiin out of the ideas? The very story she tells, said the lawyer, iudicateti her own view of Mr. Ellwanger's condition. What credit can he placed on the testimony of thui woman, especially Waring on the condition of Mr. Ellwanger's mind? "Sixteen witnesses in the case all testify to Irrationality," coiitimmd Mr. Desmond. "Finding that great niasx of testimony in the scales on one side and that of Mrs. Williams, Mra. William D. Ell-wamter and Mrs. George Ellwsniter in opposition, what can be said? What but that the great preponderance of evidence i. in favor of the incompetency of George Ellwanger? When you reach the conclusion that smiie are wrung, it seems to ine that it will be easy enough to reject the testimony f these three where H conflicts with evidence of the others." XI r. Desmond rloeed bia summary with s tribute to his associate, George It sine. Tribute to George Raines. "The work of preparing and try ing this ess baa been long and arduous, but it bas been shared and more than shared by my able associate." he said. "H needs Bo commendation of mine. His work Is here. It stands as s monument to ability. The forensic battle waged between my associate and one of the lead ing members of the medical profession Dr. Ely, waa s moat remarkable one. will be looked upon as one of classics of medical jurisprudence, know of no such contest ever waged In or any other court as was waged here my associate and Dr. Ely." Mr. Desmond snid he regarded It as signal -victory for their side that the test! mony of the physician had Wen so di rected that In spite of the unwillingness or me witness his testimony hsd been strongly, In support of their contentions. With more compliments to ths Court, Mr. Desmond transferred the case from his own shoulders and the shoulders his associate to the shoulders of Court. Mr, Desmond declared his confidence that the Court would care for and preserve the rights of tha contestants. saw he realized the great burden which from that time rested entirely with Court snd felt that when Surrogate Brown out reacn a decision It would be the result of conscience, wisdom and emeriene. William A. Sutherland will begin summary ror the proponents at 10 o'clock tins morning. ATTEMPTED SUICIDE BY CUTTING WRIST Despondent Epileptic Used Razor in Public Place. ok ana despondent, Csrl Engstaan, years old, a German, attempted to end his life by severing o veins In one of hit wrists in the Key not d Arcade last night Br Slanders who aaw blood trickling from his irist pi rented him from Kiaahlng hlmaelf iuruiernd policemen sent hlin to tho City Hospital. After his wounds were sewed up the young man was removed to headquarters and locked up on the charge of attempting m'icioe. Jnat how long Bngstann hnben In Roch ester la not known. He has been at Iho Res cue Mission for a few weeks. He li subject to epileptic siilmres. On Friday nlgl.t He lelt one coming on and hurried to the City Mospitm. ile niui b, ir re,.,d , 10t pitai when he fell to the floor. He left the hospital yetfierday morning. suortly before 10 o'clock last night persons ooservea the young man standing In the ar cade. Ho had a razor In one hand, and waa culling away at hts wrist. When taken luto custody by I'atroimno Hennessey, Kugstsan bad mndo three wounds in the wrist He was hurried to the City Hospital, where ,thc cuU were found to be more than wera cratcbea. It was necessary to tke seven or eight stitches to close the wound. DEATH OF ARTHUR J. STEJMARDT Alumnus of University of Rochester and Accomplished Amateur Actor, Arthur John Stetuliardr, who died at bis residence, No. 117 Monica street, Sunday venlug, after three weeks' illness of ptieu monln, was born lu Hatavia twenty -three years ago, but removed to thla city lu child hood. He was graduated from St. Mary's School and East High School and was member of the claw of 11)07 of the University of Rochester. Sir. Steluhordt was prominent in the social and athletic life of the univer sity and was considered by well Informed persona probably the llnest amateur actor la Rochester, a reputation of which he laid the foundation before entering collese. After leaving the university be took a re sponsible position with an International cor poration and relinquished it to embark in business for himself bat a short time before he was taken 111. Mr. Stoinhardt was a past president of St. Mary's alumni and a member of Delta Up sllon fraternity, t'uton Clnb and Knights of Columbus. He Is survived by two uncle, John and Jeremiah McCarthy, of this city, from the residence of the former of whom, No. 30 Rowley street, the funeral will be held at 9:SX o'clock to-morrow morning and at It) o'clock from Rt Mary's Church. Richard P. Naylor died yesterday at the family home. No. 36 Emmet street, agisl 5 ears. He leaves his wife, three sorm, Kd- ward and Harry, of Belleville, Canada, and Bert, of Oils city; and two UiOrfhters, Mra. Bert Brown, of Detroit, and Auna Naylor, ot this city. The remain, will be taken to Belleville, Cauada, to-dny for interment. EltztWch Ooets, wife of Avgust J. Frits, died yesterday munmig at Urn family home, No. Do Kelly street, aged 31 years and 8 months. She leaves her husbaud, lu-r parents, Mr. and Mrs. Charles Uoetx; four brothers, John, Louis, i'rank and Joseph; and three sisters, Katliortne, Rose and Anna Gocts. Msbel N., dasgj'-nr of l'atrlck and Mary Flynn, died yesterday morning the family home, No. 6W Jay street, aged W yea. Stie leaves besides her paeents six slstors, Mrs. Andrew I'ansy and llituna. Agnes, Ids, Ellsu- ivth and Margaret Klyna. (Juorge Hllbert. who died suddenly yester day at bis home, Xo. S Weeger street, leaves his mother, three brothers, Henry, Johu snd Frauk Hllbert, and on sleter. Mi's, ticorjc Muise. Agnes S., daughter of August and Johanna Karwekk, died yesterday eveutug at the family home. No. 313 Remington street, aged 17 years. Mie loaves seven brother and ou ulster. Alice Lei'lne, daughter of T. William and rally A. Lei'lne, died yesterday evening at the family home. No. 78 Koaiyo street, aged years. Burial will be private. Mary Lemmon died yesterday at the frai lly home, No. Slit Jay street, aged t yea:. She leavus four daughters and two sous. Elevator Boy Accused ol Thelt. Kaymond Riley, It years old, will be arraigned In police court this morning on charge of burglary in the third degree nd grand larceny In tho second. Hiley was an elevator boy at the City Hospital. esterday morning Carl Fox, an orderly t the hospital, reported to Office Detec tive McDonald that hia room had been burglariously entered and $Mit stoleu. Detectives Snbyne and Legler were detailed on the case, and shortly past noon they arrested Kiley. Tweury-eight dollars was recovered. Bond Issue Plan Considered. Members of the finance Committee 0f the Common Council met last night for the phr-pose of taking BP Comptroller Pond's prop-osUlos to (sane bonds In the snm of 12,700,-OU0 for ths purpose of taking up tha short-term local Improvement notes. The Comptroller explained ths plsa. lnrther ttme it to be taken In the matter aud in the mma-tints the Comptroller will get together some Azures bearing on the subject, Pre-Inventory Sale. Our pre-inventory clesring sales are no in fores throughout the store. Humhurch Bros. 1S3 Main street east. She Waa Well Known For her white and beautiful hands. La Chappa Creutu cures chapjicii hands, freckles snd redness uf the skiu. At Dske's, 23a. j

Clipped from
  1. Democrat and Chronicle,
  2. 28 Jan 1908, Tue,
  3. Page 12

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  • 28 Jan 1908 Ellwanger Will Contest D&C

    Dianaajohnson – 03 Dec 2016

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