Per request of my SAMPUBCO customer, Donna Barnes this will is attached in text format for you to add to Jefferson Co. NY site.
Please acknowlege her as submitter
Antwerp, Jefferson Co., NY
Will Book 22, pg 612-628
Evidence In Surrogate Court, Jeff. Co.
In the matter of the reprobate of the last will and testament of Jonathan
May 21 1884
Petition filed by Calvin C. Gates, one of the next of kin of said testator.
Order entered for citation to issue and citation issued returnable.
July 18th 1884
Matter adjourned to July 21st 1884
July 31 1884
Proofs of service of citation filed. Executor, John C. Trolan appeared in person. Also petitioner in person and by Mullin and Griffin his attys. Affidavit filed showing that Jonathan Gates one of the next of kin of said testator, named in said citation is an infant. Joseph Atwell, Jr appointed special guardian of infant next of kin of said testator.
Sept. 3, 1884
John C. Trolan executor appeared by John C. McCarlin his atty.
Sept. 23, 1884 Release of John C. Trolan of legacy in will to him in favor of the estate of deceased filed. Evidence taken July 31st, 1884 and on the several days to which hearing was adjourned as follows:
James Gill, being duly sworn testified as follows:
examined by Mr. Trolan
I reside in town of Antwerp in this county. I knew Jonathan Gates in his life time. I was present at time of execution of his will, was called on as a witness (paper shown witness, dated 5th Nov, 1882), that is the will I should think, that is my signature, this was in the house where he was sick in Antwerp. There were present at the time, the testator, Mr. Trolan, my daughter and myself. My daughter's name is Abigail P. I didn't see any one else in the room. I think Gerard Gates daughter came after us. I think her name is Bertha Gates. In the adjoining room I think there were four persons, they were - James Gates, Gerard Gates and Gerard's wife and his daughter. These four were not in the room where the paper was executed while I was there.
When I came in the room the testator was sitting beside the bed. I had conversation with him the same evening, just passed the time of day with him when I first came in. When I and my daugher went into the room, the door was closed after us. I think James closed the door. Mr. Trolan said to Mr. Gates, These parties have come to witness your will, and you want to acknowledge to them that this is your last will and testament. He acknowledged that it was his last will and testament, and then Mr. Trolan presents a paper all rolled up except a small place at the bottom, and said Mr. Gates wants you sign this here and said you want to put your name there, and I signed the paper and my daughter signed it. I think that is about all there was said there at that time. I don't remember as there was anything else said at that time. I wouldn't swear but that there was more said. I was with the testator 1/2 or 3/4 of an hour. Mr. Trolan left. I had conversation with him on general subjects during this time. We talked about his health, his family said some things in regard to it. He discussed matters intelligently while I was there. I thought he was in his right mind at that time and I think so now. I think he was competent to make a will. I did not on that occasion see his signature to the will. I couldn't say that he did acknowledge to me that he had executed a will.
Q. Is it not true that at the time you were called to witness the will that in your presence I told the testator that it was necessary he should acknowledge to you that he had executed the will? A. I am unable to say. I think in that interview he declared this paper to be his last will and testament. I don't remember that Mr. Trolan read the attestation clause. He might have read it. He requested us to sign as witnesses through Mr. Trolan. I think Mr. Trolan held the paper in his right hand and that it was doubled so that there was not more than one quarter of the last page visable, and he laid it down on the table for us to sign. Mr. Trolan stood on my right when I signed the paper was on a small table where they kept bottles. The table was about two feet square and stood on one side of the room against the wall on the front side of the house. The front of the house is South E. and the bed stood in the corner and the head of the bed was on same side as the table. The table was close by the bed. I sat down when I signed the paper. I sat at the end of the table facing the bed. Gates sat with his back towards the bed. Trolan sat on my right partly between me and Gates. I think Mr. Trolan had his hand on the paper when I signed it. I am not positive about this but think so. Nothing else was said between Mr. Gates and me while you were there. I never had a conversation with Trolan about the will before this, nor about witnessing the will. I was informed by the messenger that I was wanted to witness the will.
By Mr. Griffin
I had known Mr. Gates 50 years and had lived in same town with him all this time. I knew him intimately. Had lived within a mile of him for 30 years. He was farmer all the time. I knew all his children. Their names are William Wallace Gates, Stephen Gerard, Catharine (now Mrs. Allaire), James, John C. and Calvin C. making six in all. At time this paper was executed Wm. Wallace Gates was married and lived in Independence Iowa. Stephen Gerard was married and lived at home. Catharine married and lived in Aurora Ill. James was unmarried and also lived with his father. John C. I think was with Wallace. He is unmarried. Calvin C. is married and lived in Antwerp Village at that time. Mr. Gates was born in April 1800. His health had been poor since the previous September. I think about the 25th of that month. He was confined to the house about three weeks before his death, I don't know what the matter was with him. He lived to be the oldest of his family. I think he died the Sunday night following the execution of the will, this is my best recollection. On the day the will was executed he was pretty feeble and his voice trembled. He appeared to be weak but was sitting up. He was in pretty good mental condition.
Q. Describe his mental condition all that day as compared with it when in his good health.
Obj - as incomp. witness not an expert. Sustained. Exception
A. I couldn't see anything in what conversaton I had with him that day but that his mental condition was pretty good, as good as it was a week or two before . His wife had been dead for years. The wife of his son Gerard and his family and James took charge of him during his sickness. I did not see him sign this will or paper. After I signed this paper Mr. Trolan picked it up and took it away with him. Trolan did not remain over five minutes after the will was executed. My (nothing here) went out of the room into the kitchen where the family was. I remained with Mr. Gates probably 3/4 of an hour. He talked with me about his will.
Q. State what he said about his will.
Obj. as incomp and imma Overruled. Exception
A. He said to me I have altered my mind with respect to James. I had calculated to leave him something but I have not but my daughter Kate I have never given her anything and I have made provision for her in my will. I have willed her $500. Those are the words Mr. Gates used to me. He said James was going to be steady now and the boys were there and if he would stay there they could make a good living and make money now they had a good start. I don't think of any other topic he discussed there. I know Mr. Trolan, he is a lawyer practicing law at Antwerp. I know his handwriting (conceded the will is in handwriting of Mr. Trolan).
By Mr. Trolan.
R.D. I say that immediately after my daughter and myself signed this paper you (Mr. Trolan) went out of the room. I am pretty positive that you didn't set down again. I have never seen a tin box in which Mr. Gates kept his papers. I could not say that there was a tin box or trunk by Mr. Gates side in the room. I have no recollection of seeing one there. One thing is certain. I never saw that seal on that paper till I saw it here in this office. The will was not open when it was handed to me to sign. I don't think you wrote a word on that paper after we signed it. I have no recollection of it whether you did or not. I first spoke about this conversation I had with Mr. Gates after execution of will after the will was admitted to probate. I spoke of it first to Calvin or Stephen Conklin. I think I never had any conversation with you in regard to the will. I never had no trouble with you in regard to the will. I never had no trouble with you in regard to an affair in favor of Girard Gates against this estate. I presented to you such an account.
Q. Was payment refused?
A. You said you would pay it sometime. I never put it in Mr. Hildreths? hands for collection. I don't know where you went after you left the room after the will was signed. I didn't see you again. I had no conversation with Mr. Gates while you were in the room, you were talking with him. I can't tell what you were talking about.
Abby P. Gill, being duly sworn testified as follows:
I reside in Antwerp and have about 35 years. Am daugher of James Gill (paper shown witness). This is my signature on paper shown me. I remember occasion when I signed it. It was at the residence of Jonathan Gates. I don't remember the date. It was in the evening don't remember the day. It was in the middle of sitting room of Mr. Gates' house. Mr. Gates grandaughter came over and said we were wanted to go there. I asked her if her grandfather was worse. She said no. Mr. Trolan was there and was doing some writing. When we came into the room you were there and Mr. Gates. Mr. Trolan said to Mr. Gates you want to acknowledge before these witnesses that this is your last will and testament. Mr. Gates acknowledged it by nodding his head. I don't remember whether he said anything or not.
Q. Did he acknowledge to you on that occasion that he had executed this will or paper shown you and if so what did he say?
Obj as calling for conclusion - overruled - exception
A. Mr. Trolan read the attestation clause to us. I don't remember as Gates said anything to me about the instrument. The attestation clause was read to me in the presence and hearing of Mr. Gates. I don't know whether Gates assented to the attestation clause, he made no sign that I saw. When he bowed his head it was in answer to the question by Mr. Trolan that paper was his last willl and testament.
Q. Was this before or after the attestation clause was read to him and you.
A. It was before.
Q. Did Trolan on that occasion say to Mr. Gates that it was necessary that he should acknowledge the execution of the will or paper to the witnesses?
A. Mr. Trolan read from the attestation clause. I don't know that Mr. Gates said anything. I didn't hear him say. I don't remember that Mr. Gates requested me to sign the will. I signed it in his presnece and in the presence of my father the other witness. Father signed it in my presence and in the presence of Mr. Gates. The paper was lying on a table when it was signed. No one handed the will to me. The table stood against the front side of the house and Mr. Gates sat in front of the table facing it. The bed was at the right side of the table. I sat at the left of Mr. Gates when I signed it. The only portion of the will visable when I signed was the attestation clause. I am confident now that it was so. I am also confident that Mr. Gates faced the table. He faced towards the road that brought me to his right.
Q. Did you understand you were signing this will as a witness at his request?
Obj as incomp and immaterial. Witness should state facts and not conclusions. Overruled Exception
A. I took it for granted that I was. I didn't understand or think anything about it.
Q. Did you understand at the time that he acknowledged to you as a subscribing witness that he had executed the will in question?
Obj. on same ground as incomp. in calling for conclusion. Overruled Exception
A. I told you that I did not understand that he acknowledged it in any way.
Q. Did you understand from him that the paper you signed was his last will and testament?
Same obj as to last proceding quesiton. Same ruling and exception
A. I understood by his assenting that it was his last will and testament.
Q. Please explain why if the attestation clause was read to you and you did not understand that Mr. Gates desired you to sign the will as a subscribing witness or that he acknowledged the paper to be his last will and testament you nevertheless did sign it and thus certified to these facts.
A. I remember that he did acknowledge it to be his last will and testament.
Q. Why did you sign the will after hearing the attestation clause read if you did not understand that Mr. Gates desired you to sign it as a subscribing witness.
A. I did it because the will was laid down and I just signed my name. Mr. Trolan said I must write my name right below my father's name.
By the Court
Did Mr. Gates sign the will in your presence?
Obj by Mr. Trolan as incomp. Overruled. Exception
A. No sir.
By Mr. Trolan
The first thing I remember after I came into the room, I was introduced to Mr. Trolan. The next thing I remember was that Mr. Trolan told Mr. Gates that he must acknowledge before us that that was his last will and testament. Mr. Trolan said something about Mr. Gates having made his will and read the attestation clause. I remember nothing more being said. I had no conversaton with Mr. Gates except to inquire about his health. I did not realize but what Mr. Gates appeared all right on this occasion, conversed as rationally as ever as far as I could see as I understood he was of sound mind memory and understanding and seemed to know what he was doing. I was perhaps ten minutes in the room. I was in there often and I saw Mr. Gates about every time I went in - went in because he was sick. Can't state last time I had been there, probably within a few days. Always had more or less conversation with him. Sometimes he was sitting sometimes lying down. My frequent visits extended from the time he was taken sick up to the time the will was made. I had visited him before that. I never discussed on any of these visits any thing which lead me to believe there was any impairment to his mind or faculties or his memory. From anything I discussed he was just as competent to know what he wanted as ever.
Cross Ex by Mr. Griffin
Q. At time you were called to Mr. Gates house, did you see him sign this paper?
A. No Sir I did not. He used to wear spectacles when he read or wrote. I don't think he had on his spectables that day. While I was there I did not learn from any source what the contents of that paper were. I left the room before Mr. Trolan and remained in adjoining room until he popped out. He remained about 5 minutes after I passed out.
ReD. Mr. Trolan left the kitchen before I did
Adjd to Sept 3, 1884 10 A.M.
Sept 3, 1884
Parties appeared as before, matter adj. to Sept 23
Sept 23, 1884
Jno. C. Trolan, executor appeared in person and by Jno C. McMartin his atty. Contestant appeared by D. G. Griffin his atty and J. Atwell appeared as Spl Guardian.
Contestants do not raise any question as to competency of testator to execute will at date of instrument in question.
The executor offers in evidence the deposition of James Gill subscribing witness to the will in question taken before the Surrogate of Jeff. Co. on the probate of said will June 6, 1883 and subscribed by said witnesses.
Contestants object to same on ground they are incomp and immaterial either to dispute their subsequent oral testimony being witnesses called by proponent and as not being the best evidence. Received exception to contestants
John C. Trolan, sworn for proponent testified as follows:
I am an atty residing at Antwerp N.Y. have been engaged in practice 12 yrs knew Jonathan Gates in his life time, he resided abt one mile from Antwerp on a farm, knew him all of the 12 yrs. I drew the will in question. I wrote the will at his house, there were present at the house Jonathan Gates the decd. S. Gerard Gates, James J. Gates, and Mrs Gates and I think a young girl. James Gill was not there when will was drawn.
Contestant object and moved to strike out answer so far as it relates to the
presence of the testator it being conceded that the witness is executor named
in the will as being incomp under Sec. 829 Code Civ. Motion denied.
Exception to contestants.
It was in the afternoon abt 2 o'clock when I went there. I was there altogether three hours. I left just about dark, think I left the house before tea, just about supper time.
Q. F Did you read the will aloud before its execution?
Obj. to as involving personal transaction between witness and testator.
Witness being interested as legatee.
Obj sustained. Exception to proponent.
Proponent offers to show by this witness, 1st the due execution of the will (to this contestants make no objection) I was present when will was executed by testator (I read the will over to Mr. Gates).. above in parenthesis excluded exception to proponent.
I said to Mr. Gates that it would be necessary to have witnesses. Somebody went after Mr. Gill and his daughter some member of the family. They came in the house and into the room where Mr. Gates was. During the time while the messenger was after Mr. Gill and daugher, the testator had the will in his hand.
Objection and motion to strike out by contestant, granted. Exception to proponent.
Mr. Gates signed will just abt time Gill and daughter came in the house. I can't state positively whether they were in the room when he signed the will, but when they came in, I said to them that Mr. Gates had been making his will and desired them to witness its execution. I then read the attestation clause of the will in the presence of all three. I think James or Gerard, I am not certain which, but I think one or the other was in the room standing back of the old man's chair. I said to Mr. Gates that it was necessary that he should asknowledge to them that he executed the will and declare it to be hs last will and testament and that he should request them to sign as witnesses. He hesitated a moment and then I asked him, I said "Do you acknowledge that you executed this and declare it to be your last will and testament and request these witnesses to sign it?" He nodded his head and said, "I do". At this time the will was lying on the table and I told Mr. Gill he better sign first. He signed it. After he signed it I stepped to the table and wrote his address after his name. I also made the word witness on the lower line where the daughter was to sign. She then signed it. Up to that time this sheet of paper (witness holds alleged will in his hand) had not been folded. After they had signed it I then folded the paper and I asked Mr. Gates, what I should do with the will.
Obj same as before. Sustained. Exception to proponet.
Proponent offers to show that Mr. Gates then directs witness keep the will and put it in his safe.
Obj. and excluded. Exn. to propt. I took the will home with me and put it in my safe. Mr. Gates died about two weeks afterwards.
Calvin C. Gates spoke to me that day about drawing the will. He was a son of dec'd. I procured a horse and went up there. No body went with me.
Proponent offers to show that witness had no conversation with testator prior to that day, that the will was drawn according to testators directions, his reasons for creating a trust for the benefit of his one child, the advances that he had made to his children, why he left more to some than others, that the will was carefully read over to him before signing, and executed by him with full knowledge of its contents... no objectn
Court directs proponent to state question to witness as to same.
Q. Was the will read over to dec'd aloud before exectuion?
Obj. to as incomp, under SS829 code it being conceded that if read at all was read by witness. Sustained. Exn to proponent.
Q. You may state what he said before execution of will in regard to the financial condition of his son, Jno. C. Gates.
Same obj. Sustained. Exn.
Proponent offers to show that testator said to witness John was insolvent,
intemperate and incapable to take care of his property.
Same objn. Same ruling. Exn.
Q. What did he say in regard to having made advances to his children?
Same objn. Same ruling. Exn.
Proponent offers to show that testator said to witness that he had made advances to some of his children more than to others and that was allowed one daughter was wealthy and didn't require any assistance. Same objn. Same ruling. Exn.
Q. Did the testator on that occasion previous to drawing the will produce a trunk containing papers, his securities and did he read them off to you and did you make a memorandum of the amounts? Same objn. Same ruling. Exn.
Proponents offer to show that previous to drawing will and on same occasion testator directed witness to bring a tin trunk containing his notes and other securities and directed him to open it and testator took from it his notes and other securities and read same to witness and had witness take down the amounts and put the same up with a view as he said of ascertaining the amount of his property previous to making the will in question. Objn same as before. Sustained. Exn.
Proponents offer to file with the court a release of the legacy given witness in order that he may be made a competent witness.
Recess to 2 p.m.
The witness Jno. C. Trolan here filed a release to the Estate of the legacy given him by the alleged last will of Jonathan Gates, deceased.
Witness continued. I went to the house at the request of Calvin C. Gates. This was Nov. 5, 1882. After I arrived at Mr. Gates' house and I went into the sitting room the testator was there and James J. Gates, Stephen Girard Gates, and Mr. Gates and I think a young girl. One of the boys took my horse and put it into the barn the others remained in the house and took my ulster?. I sat down by the fire. After getting warm, some one suggested that we step into the other room; testator was setting by fire in sitting room and he arose and went into other room and I followed him. I think James went in with us. He, James, didn't remain in the room but a few minutes. I said to the testator I suppose you know what I have come here for.
Obj. by contestant to witness
testifying to any personal transaction between himself and testator, he being
incomp. under SS829 Code Civ P as it appears he is named as Ex. of the will.
He said "Yes, I suppose you have come to make my will" (all conversation between witness and testator Obj. to by contestant same as above and same ruling). We had some little talk about his health. I told him I had seen Calvin and at his suggestin I had come up to draw his will. I asked him if he had made up his mind what dispositon he desired to make of his property. He said he hadn't a great deal to dispose of but he guessed he had about settled it in his mind. He then went on and told me something about the condition of his children and what he had done for them; he said that this boy, James, who was at home then, had come from the West and he felt like doing something for him; that the only ones who hadn't rec'd their share were Girard and Calvin and he had tried to make that right by conveying the farm. He spoke of Jno. C., as being the unfortunate one of the family; he had done as much or more for him as he had for any of the others, but he had nothing left, and he wanted to fix it so he could have the use of it. He said Jno. was in debt and if he left him anything his creditors could reach it and that he wanted to avoid. He asked me if it wouldn't be a good idea to let him have the use of the property while he lived. I told him that I thought if there were any monies payable to him at stated times that a judgment creditor could reach them when due as easily as tho he made a bequest to him outright. He then asked me how I thought that could be worded. I told him I thought if he made the income of the property payable to him as he needed it in the discretion of the executor that it would be difficult to reach it in that way because if judgt. creditor commenced proceedings it would be in the discretion of the Exr to say whether he needed anything. The suggestion seemed to please him and he said he would have it fixed in that way. He spoke about his daughter, Mrs. Allair, Kate he called her. He said he hadn't done much for her, but he said she was rich and didn't need anything, He then told me there was a tin trunk in his bedroom off the room where we were seated. He described where it was and requested me to get it. I went into the bedroom and got it. He unlocked it and took out some notes that were in the trunk and read off the list of notes and made a memorandum of them at the time. I hold in my hand the memorandum of them I made.
Proponent offers memorandum in evidence, Re: marked "F".
This is a list of the notes and securities he read to me that date. Some
payments had been made on some of the notes. I took list for the purpose
identifycation (sp). He then went on and told me what bequests he wanted to
make. I made a mem. of it on slip of paper and when he had finished I read it
to him and asked him if that was what he wanted and he said it was. I then
sat down by table in front of him and wrote the will as far as the end of the
4th bequest and I then read it over to him as I had written. He said that was
all right. I asked him if there was any other bequest he wanted to make and
he said no. I then said that the only thing remaining was to name his Ex'r.
and asked him if he had settled who that should be. He said he had thot of it
and said he would like to have me act as Ex'r. The only trouble was he said
he thot there wasn't property enough to pay me for the bother. He said
it would probably be a long lingering matter and he did not know but the fee's
would eat it all up and there would be a good deal of bother about it and he
didn't know as it would pay. I said that if he desired he could name the
sum to his Ex'r as compensation and if I thot it was satisfactory I would let
him know whether I would accept it. He then asked me if I thot I could take it
for $500. I said "I guess so" then he said "well then we'll fix it in that
way". I then wrote the 5th section in the will and the finishing clause and
then I read the whole will over to him from beginning to end. He expressed
himself as perfectly satisfied with it. I then said to him that it would be
necessary to have two witnesses to the will and asked him who he would have.
He wanted to know if his sons couldn't witness it and I said no, I thot not.
He said he would send out and get Mr. Gill and Abbie. He called some one in
and sent for them. While they were gone after the witnesses, I went into the
setting room and got cigar. I gave Mr. Gates the will before I went out. I
then came back into the room and he signed the will. He asked me where to
sign. I pointed to seal and told him to sign opposite the seal. Mr. Gill and
daughter Abbie came in and they exchanged the courtecies of the day. I told
them Mr. Gates had been making his will and they had been sent for as
witnesses to the will. I then said to Mr. Gates that it would be necessary
for him to go through certain formalities. I then read over to him in their
presence the attestation clause. I then said to him that it would be
necessary for him to acknowledge the Ex'r of the will, declare it to be his
last will and testament and ask them to sign it as witnesses. I then asked him
if he did so. He said "I do". I then said to Mr. Gill that he had better
sign it first and indicated where he should sign it. He signed his name on
the upper line and I then added his address on the same line and wrote Antwerp
on the line beneath where his daughter was going to sign and then she signed
it. There were a few more words between us all, nothing about the will. I
then asked Mr. Gates what I should do with the will as it was all completed.
He said I had better take it home and put it in the safe. I had brought up a
large envelope. I took and enclosed the will in the envelope sealed it and
endorsed it on the back side and then I went home. I put it in my safe and
that envelope wasn't broken until it was brot here to surrogates office.
After endorsing envelope I went into sitting room re-lit my cigar and sat by
the stove till my horse was ready and then drove home. When I went there I
had no other business except to draw this will. I took the printed form will
is written on with me when I went up. I think I had known Mr. Gates about 10
years but hadn't been intimately acquainted until abt 4 or 5 yrs before. I
had done business for him during the last 5 yrs. On one occasion when I was
drawing writings for him between himself and Calvin and James after the papers
were completed he said that some time when he was down town he was coming to
the office to have me draw his will, that he had disposed of his real estate
and he wanted to dispose of what he had left. I have been engaged in practice
of law 17 years have frequestly attended execution of wills previous to this.
The boy who stood behind testator's chair when Mr. Gill and daugher came in
was only there a moment. I had other securities belonging to Mr. Gates at
this time in my safe for safe keeping what he had left with me sometime
before. The amount in testators Estate to about $2200 or $2300 all in
John C. Trolan
Contestants move to strike out all of the foregoing testimony relating to personal transactions between the witness and testator upon the ground that it is incomp under SS 829 Code Civ. Pro. Motion denied. Ex'n to contestents.
In Res Oct 11, 1884
Jonathan Gates, dec'd
Parties appeared as before.
Layton Bently being duly sworn for contestants testified as follows. I reside at Antwerp my age is 66 years. I knew Jonathan Gates 40 years or more. He lived in my family the fall before he died, he had lived there at different times but longer the fall before he died that at any other time.
Q. What can you say of his eye sight at that time.
Overruled. Not competent to give opinion.
A. He wore spectacles. Every time he wanted to look at any thing he had to put his spectacles on. When he got a letter he would take it to my wife or me to read.
Q. Did you observe any change in his health or mental condition. Obj'n as
incomp and calling for opinion of the witness. Sustained.
A. Some days he could walk very well, other days he would totter (He had bad spells). Obj'n to incomp.
I can't describe his condition any farther. He was over 80 years of age. He left my house late in the fall before he died. After he left my house I next saw him down at the village. Had no con. with him on that occasion about his will. The last time I saw him was at his house the Friday before he died. Had conversation with him. My wife was with me. My wife asked him how he did. He said to her "I have made a will". He said "I gave Kate $500". She said "you've done just right". After a moment he said " I left something to John in case he comes to want" I said to him "whom did you leave it with" he said "with Wallace" and he said "I thought it was best". He was about exhausted and that was all. He died the following Sunday, two days after. I knew his family. Wallace Gates is a son. He lived West in Illinois. I didn't know where John was at this time. Last I heard of him he was up in Mich. John was a man of intemperate habits. Wallace was a man of good habits. Have heard testator speak of Wallace and doing first rate. Kate was a daughter of testator. She lives West. She is married. Can't say when she lived in the West.
I understand from testator that Kate had married wealthy and was quite well off. Previously when he was boarding at my house, he said Kate had enough. Wallace had been west I should think 20 years and the old gentleman had purchased his farm for him. I understood from him he had been west at Wallace's just before he came to my house. I understood Wallace's farm was either 160 or 240 acres. He had good house and grove and good barns on the farm and most of it was under state of cultivation, told me much of house and cattle on it and that he raisd large amount of grain. John had been gone several years. He told me he had helped John several times and he had squandered his money that he had used up his share. He said he didn't want him John to come to want said that while he boarded with me. Boarded with me 3 or 4 months. His wife died 2 or 3 years before. After his wife's death he used to live with his children before he came to my house. His children lived on whhat was formerly his farm. He made it his home there. My wife advised him to leave something to Kate and he replied that Kate had enough said she had married wealthy. Never heard my wife advise him to leave anything to John. He spoke frequently of John's dispositon and not earning anything. While he boarded at my house I don't recollect his going up to the farm. He went around town some days. When I saw him at his house on the Friday before he died he was sick and spoke with difficulty. His breath was short. My business for last 21 years has been shoe business part of the time have kept saloon some. My wife was a niece of the testator. I haven't been in the shoe business in 3 years. Have been in saloon business within a year and have had saloon in my house for last 15 years off and on. I have not often been witness. Have been a witness before, was a witness in Mrs. Gills mill? case. I had a suit against Lucius Gill Estate. I was a witness on that. The testator told me he had made advances to his boys. John had had his share. He had divided the farm between James and Calvin. He said he had fixed Girard, had made advances to him. Girard was sometimes dissipated. Girard is farming West. I believe he went away a year ago last spring. He had been West before. My impression is testator had spoken of bad management and dissipation of Girard. Heard him say Girard had not been successful. He had letters from him and I read them to him. Testator was trying to get him home. Girard's barn had burned and testator had been up to build him another and did so of late years. I think James is a little dissipated, more so since his mother died.
Don't know anything about Wallace habits, Testator used to say he was very temperate, that he had got one temperate boy.
Adj. to Oct. 18th 10 A.M.
Matter adjourned from time to time to this, the 28th day of April 1885. And the matter having been duly submitted by the respective parties hereto. And after a careful examination of the evidence and authorities cited by attys. of contestant and proponent, I find 1st That the testator Jonathan Gates at the time of the execution of the will in question was of sound mind memory and understanding of full age and competent to make a will.
2nd That Executor John C. Trolan by renouncing his legacy and all right and claim to share in the Estate of testator as a legatee named in said will become and was a competent witness to testify to the drawing of the will, the instructions of the testator to him, and the conversations of the testator to Trolan in regard to the property of the deceased and the execution of the will and all matters relating thereto as testified by him. That Trolan was not a party to this action or proceeding for the probate of the will of said testator within the meaning of Section 829 of the code and was not disqualified as a witness by reason of being namd as Executor in the will in question.
3rd That said will was duly executed in compliance with the Statutes in regard to the execution of last Wills and Testaments, that the same was read over to the testator by Trolan and the testator knew and understood the contents of said will, and the disposition therein made of his property at the time of the execution thereof. That he was not under any restraint, and was in the free ?? enjoyment of his mental faculties, in fact his competancy was not questioned, and it was conceded by contestant that he was fully competent to make a will. I am asked to find from the evidence of the witnesses James Gill and Bently that Trolan committed a fraud on testator they having testified that after the execution of the will testator stated to them that he had left his daughter Kate $500.00 and that he had made his son Wallace trustee of the property he had left for the care and support of his son John, there being in fact no bequest to Kate and Trolan being the trustee of John's share. I cannot come to this conclusion from the evidence. Trolan's evidence on this point is clear and in strict accord with all previous conversations had by Gill and Bently with the testator in regard to what he should do with this property, so far as such conversations related to John and Kate should have of his property.
4th Decree to be entered of this date confirming the probate of said will as a good and valid will of real and personal estate.
Ross C. Scott, Surrogate
See Book Q of Minutes for decree confirming probate of said Will. Page qv.
Ross C. Scott, Surrogate
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