The 89 Years War

At the 11th hour of the 11th day of the 11th month one hundred years ago, the guns of August 1914 finally fell silent on the Western front in France and Belgium. This armistice, as it was called, was essentially a surrender of an exhausted German Empire to an exhausted France and Great Britain, the latter being saved by fresh American forces that intervened late. At the time, a large part of northeastern France and most of Belgium was still under German control, and no German territory had been invaded. It was thus not seen as a win for the western allies as much as a new, liberal government in Germany giving up. This was, the genesis of the “stab-in-the-back” theory advanced with success by the National Socialists. The truth is that there was no way Germany could continue the war. Its economy was devastated, the government was in chaos, its civilians were starving, it had suffered two million casualties, and there were over a million fresh American troops poised to invade. So a truce was made.

Beginning in 1926 to 1954, November 11 was officially celebrated as “Armistice Day” in the United States. It was changed to Veterans Day in 1954 to honor all of American Veterans. Certainly part of the impetus for the change was because it had become obvious that there is no reason to celebrate what amounted to a temporary truce. The day is still Armistice Day in France and Belgium and Remembrance Sunday (informally, “Poppy Day” for the red paper poppies that are traditionally worn) in Great Britain. Germany, understandably, does not celebrate the day, but has the Volkstrauertag — national day of mourning — on the Sunday closest to November 16.

What was called the Great War, and after 1945, World War I, was really the first phase of an 80 Years War. It began in August 1914, and only ended, according to some historians, in 1994, when the last Russian troops were withdrawn from Eastern Europe. That year, the Western victory was celebrated here in Dallas by a local restauranteur who obtained a bronze life-size statue of Vladimir Lenin from a factory in Russia that he erected on a pilaster in front of his establishment bearing the caption “America Won.” Whether that caption was accurate, or whether there is just another truce, remains to be seen.

The November armistice was followed by the Treaty of Versailles between Germany and the Western belligerents, and associated treaties with Germany’s allies. The Treaty was harsh, but not as harsh as the one Germany had imposed Russia. Nevertheless, economist John Maynard Keynes, who was a consultant to the Western allies at the Versailles peace conference, believed then the treaty was folly as it attempted to impose what amounted to a Carthaginian Peace. Even so, it might have been less odious to the German people had it not included the “war guilt clause” blaming Germany solely for the war. There had been enough blame to go around. As it turned out, it was, as Professor David Fromkin put it, the war to end all wars was interrupted by a peace to end all peace.

The war that began in 1914 is sometimes described as the attempted suicide of Western Civilization, or a civil war in the West. Scholars can argue about that, but, like all wars, it was about material resources — land and money, if you will. The first phase saw three European hereditary monarchies — Germany, Austria-Hungary and the Ottoman (Turkish) Empire — opposed by an alliance of the Russian Empire and colonialist empires of Great Britain and France. Others, including Italy and Japan, joined in on the side of Britain and France, though, except for Italy, did little actual fighting. The European belligerents engaged in a bloody stalemate for 3 ½ years before the United States, a constitutional republic, came to the colonial empires’ rescue at the 11th hour, almost literally.

The 1914-1918 conflict destroyed four hereditary empires and left the purported winning colonialists — Britain and France — seriously weakened. Arguably, the United States and Japan, later to be adversaries, came out stronger.

The 20 year truce period of this eight decades long war, ended with what has been commonly called World War II. In that phase, a re-alignment of parties occurred. Italy and Japan, both now authoritarian if not totalitarian dictatorships, allied with a totalitarian Nazi Germany. Initially the Soviet Russia, also totalitarian, aligned with Germany to partition Poland and gain hegemony in eastern Europe. Later Hitler double-crossed Stalin, and attacked the Soviet Union, and America entered the war after Pearl Harbor. There then existed an improbable alliance of a democratic republic, an imperial monarchy, and a communist dictatorship allied against three totalitarian and militaristic regimes.

This phase ended with a real Carthaginian Peace as to Japan, Germany, and Italy. These belligerents knew they had lost. Neither nation has been in a position to militarily menace the world since. Britain’s and France’s remaining colonial empires were collapsing, and were gone within two decades. The United States and the Soviet Union emerged bloody, but in fighting form. They soon became the principal adversaries in the third phase, termed the Cold War.

The Cold War was only cold in the sense that a direct, all-out conflict between the principal adversaries was avoided — thankfully, as both sides soon became nuclear armed. There was, however, plenty of fighting. The Korean War, brush fire wars between client states in the Third World, Vietnam, Afghanistan, various standoffs — the Korean DMZ and Berlin Wall — all produced casualties and destruction. But the ultimate weapons were economic. Collectivist communism could not prevail against free market capitalism. The communist system collapsed. The Berlin Wall fell, soon followed by the Soviet Union itself. Russia, the Soviet Union’s successor, withdrew its military from its former Eastern European bloc.

Some semblance of peace between the Great Powers now exists. Of course there is rivalry between and among the major states, but that does not amount to war where one side seeks to destroy the other as was the case formerly. Russia under Vladimir Putin wants to be dominant in its geographical sphere of influence, but is not seeking world domination. The military and otherwise existential conflict today is with militant Islam, not the great nation-states of the 20th Century.

Fools, Drunkards …..

These days, some have said, we are short of heroes. That is not correct. We have in everyday life those who perform heroically. Most are unsung, but we could not continue to live in a decent, secure, and just society without them. Among politicians, it is further said that most are only looking out for their own narrow interests, which generally translates into being reelected. That might be the case for some, at sometimes. But during the past several days we have found at least one who was a genuine hero.

Actually, in less politically correct times, Senator Susan Collins might have been called a heroine. But no matter. On Friday, October 5, Collins made a speech to the United States Senate explaining why she, who all acknowledged was pivotal, would vote to confirm Brett Kavanaugh as an associate Justice of the United States Supreme Court, despite the nearly unified opposition by the opposing party and allegations that he sexually assaulted a woman 36 years ago.

Quite a few politicians, and left-wing movement groups averred that the accusation by the alleged victim made in public and under oath should be sufficient to derail Kavanaugh’s confirmation. Some reasons put forth were that the accusations alone were enough to cast a shadow over the Supreme Court, that women making those accusations have been ignored in the past, and that the allegations were made in the context not of a criminal trial, but of a “job interview” for the associate Justice position, so the presumption of innocence should not apply.

As to the first, perhaps sexual assault and rape are under-reported crimes. This does not mean, however, that such an accusation should be treated as presumptively true. To do so would be to put the burden on an accused to prove a negative—difficult if not impossible. The burden to prove a fact, when contested, must always be on the proponent. It also is as much a collectivist notion as racism to make one’s sex criteria for judging truth. Collectives do not at for good or bad individuals do.

True, a Senate confirmation hearing is not a criminal trial, but neither is it a mere job interview. The Senate cannot appoint a judicial officer— only the President can. It is the Senate’s job to ratify, or not, the President’s pick, giving it a presumption of being proper. That presumption can be rebutted by sufficient credible evidence that a President’s nominee is unworthy. Absence such evidence— as was the case here— the nominee should be confirmed.

The presumption of innocence is the Golden Thread that runs through centuries of Anglo-American jurisprudence, and, indeed, life. Where it does not apply, tyranny results.

What was striking about Collins’ speech was the detailed point by point reasoning and analysis applied to facts concerning Kavanaugh’s judicial record, and the accusations of misconduct during his teenage and college years. For nearly an hour Collins first went through her analysis of the judicial opinions written by the nominee, her questioning and discussions with the nominee, and his testimony before the judiciary committee. She then answered the concerns raised about the alleged sexual assault. She concluded that, regardless of the context, before an otherwise qualified person would be denied a position on the Supreme Court, allegations would have to rise at least above a more likely than not standard, otherwise known as a preponderance of the evidence. Because of the utter lack of corroboration, and the paucity of the alleged victim’s knowledge of details, and, indeed, erroneous identification of supposed witnesses, the evidence did not even reach that lower standard.

To have failed to confirm Brett Kavanaugh because of the uncorroborated accusations would have given license to opponents to use that tactic in future appointment confirmations. It would have also upended the important principle that an accuser has the burden of proof in any forum. Senator Collins courageous defense of that principle preserved it for the futures advise and consent hearings.

An aphorism from the 19th Century, sometimes attributed to German Chancellor Otto von Bismarck, maintains that Providence takes special care of fools, drunkards, and the United States of America. Providence, or God if you will, acts through human agents. And once again Providence stepped up, and Senator Susan Collins was a splendid agent.

J’accuse?

The 11th hour accusations of misconduct by Supreme Court nominee Brett Kavanaugh occurring 36 years ago when he was in high school should not be surprising. His opponents have shown a willingness to stop at nothing to derail his confirmation. The timing is perfect, oh so convenient. The allegations are sufficiently lurid, if considerably attenuated, to call his character into question, and are probably impossible to disprove to everyone’s satisfaction.

It is not surprising also that the judiciary committee member who chose to reveal it at this time is Dianne Feinstein. Ms. Feinstein, as an experienced senator, probably does not really fear that Kavanaugh will provide the vote to overturn Roe vs. Wade. What she really fears is that Kavanaugh will not vote to overturn District of Columbia v. Heller. Her crusade has been against the right of individuals to keep and bear arms for quite some time. Ideally, and if she were an absolute monarch, she would decree that no one, other than her military and bodyguards, could possess firearms.

Proving a negative is close to impossible most of the time. That is why both our criminal and civil justice systems require that the accuser, prosecutor, or plaintiff has the burden of proof. In criminal cases the standard for proof is that of beyond a reasonable doubt. In most civil cases it is preponderance of the evidence; that is, “more likely than not.” Important civil cases in which certain rights or interests are at stake, the standard is clear and convincing evidence. The latter standard should apply in this case. If Christine Ford or her supporters cannot provide such evidence, this accusation must be dismissed and Kavanaugh confirmed forthwith. Because Feinstein and others have had this information for over four months, there should not be any delay.

The reverse standard, which was that of the Spanish Inquisition, and other authoritarian and totalitarian systems, was abrogated in this country centuries ago. It has even been discredited in its places of origin. A number of egregious examples where mere accusation caused injustice include the Dreyfus affair in France a century and a quarter ago. Journalist and author Emile Zola penned and published the famous J’accuse essay, for which he was run out of France for a while. Zola’s writing stirred up questions that ultimately resulted in Dreyfuss’ exoneration, but only after he spent a number of years in the French penal colony on Devil’s Island. More to the present point, the fictional character of Tom Robinson, who stands in the place of real life accused, but innocent, rapists, is the paradigm of one convicted solely on the uncorroborated accusation of an alleged victim. In the Kavanaugh matter, likewise, the proponents of the accusation have an agenda. In Robinson case it was the fear of eroding the white supremacy order; in Kavanaugh it is the fear of halting, or really slowing, the advance to a overreaching, all intrusive government that benefits only the self-defined elites.

Mr. Kavanaugh now stands in Alford Dreyfuss’ shoes and those of the ones represented by Robinson’s character. Tomas Toquemeda and Bob Ewell would be proud? Maybe not. both are on the ash heap of history. Let’s hope they stay there.

— 30 —

August Perils

After graduating from college in 1967, I spent the summer and early fall as a radio announcer at a small, local AM radio station in Slidell, Louisiana. The job was playing music — mostly C&W but occasionally pop and light rock — reading news, and some commercials, from mid-afternoon weekdays until sign-off in the early evening.

The summer of 1967 was not the tumultuous one of the next year, but neither was it the Summer of Love touted by nostalgic unreconstructed hippies. Protests against the Vietnam War were growing and serious riots were occurring in many large cities across the land. Regional news in small southern towns was more important to local media. I recall a news item that came off the AP wire that a sheriff in southwestern Tennessee had been ambushed, seriously wounded, and his wife was killed on August 12. Didn’t think much more about it.

In the 1970s, Walking Tall, a motion picture loosely based on Sheriff Buford Pusser’s career in McNairy County Tennessee came to theaters. McNairy County in the 1960s was a hotbed of criminal activities consisting of illegal gambling, various swindles, prostitution, robbery, and drug dealing. This movie, possessed no doubt of much dramatic license, portrayed Pusser as a crusading law enforcement official using his authority and resolve in an attempt to suppress criminal activities in his county. In doing so, he raised the ire of various crooks and others who financially benefitted from these activities.

McNairy County’s criminal activities were perpetrated mainly by the Dixie Mafia and its affiliate called State Line Mob. This group had no relation to the so-called Italian Mafia, but rather were a loose group of traveling criminals who operated throughout a number of southern states, mainly Mississippi, Tennessee, Louisiana, and Texas. A prominent member of this gang was one Kirksey Nix. The word on the street was that Nix, who together with his associate Carl Douglas “Towhead” White, who ran the illegal operations in McNairy County, were tired of being hassled by Pusser and ordered the hit whereby Pusser was wounded and his wife killed. This is never proven, but many in law enforcement believe the attack was carried out by Nix or one of his henchmen. Around the same time, Nix was charged with the murder of a New Orleans grocer, tried, and sentenced to life in prison without parole To this day he remains a prisoner at the Terre Haute federal prison Communications Management Unit that restricts contact with the outside world.

When I was relieved from active duty in the U. S. Army, one of the first things that greeted me upon returning to Dallas was a jury summons. I dutifully appeared at the then new courthouse (now named the George L. Allen Courts Building) and was selected to serve on a criminal jury trying a man for committing a home invasion robbery of a wealthy resident in North Dallas. The trial, and both the lawyers, and the police detectives who were the main witnesses apart from an accomplice, was fascinating to me. So much so that I blame or credit the rest of my career in law and law enforcement to the experience. After an all week trial, we convicted the perpetrator, and the judge sentenced him to life as a habitual criminal. The prosecutors debriefed us and explained that the now convicted robber, and his gang of five who carried out the crime, were Dixie Mafia associates who had pulled many such robberies and other crimes in the area and throughout the state.

Subsequently, 5 years to the month after the attack on Pusser, I was a brand-new Dallas police officer when I heard the news about the demise of a known associate of Kirksey Nix, who was supposedly an “enforcer” for the Dixie Mafia. Stanley Lee “Creeper” Cook was ambushed and shot to death. Cook was leaving a dive bar known as the Lemon Twist at the corner of Lemmon Avenue and Wycliff Street around midnight August 30, 1972, when a rifle bullet put a hole in his liver. Some of the veteran officers, who were familiar with the Dixie Mafia people, speculated that this was a revenge killing by Sheriff Pusser, who was known to be in the Dallas area at the time. I was never privy to the Dallas detectives’ investigation of this homicide, but in those days (and I suspect sub rosa even today) the attitude of most police officers is that as long as it’s criminals killing each other, nothing but good can come from it. No one was ever arrested or charged with Cook’s killing, and it was chalked up to good riddance. Two years later Pusser, who had resigned as Sheriff in the meantime, was killed in one car wreck on a highway in Tennessee. There was no evidence of foul play, even though there has been a good deal of speculation.

So much for one of my rather attenuated brushes with law enforcement history.

Glorious?

Among certain of the upper crust in Great Britain, the day in August that marks the opening of Red Grouse season in Scotland is known as the Glorious Twelfth. We are informed that members of many of the exclusive gentlemens’ clubs (the term has a somewhat less salacious meaning across the pond than it has come to have here in the U. S.) in London, vie to be the first to bring a grouse he has shot to his club so it can be cooked and eaten by him and his mates. The current state of modern transportation technology makes for some rather extreme efforts. So far, they have fallen short of using ballistic missiles. Today, however, it is not possible to beam a grouse the length of the sceptered isle (or across the street, for that matter.) But you never know.  Hear that, Scotty?

The twelfth will be somewhat inglorious for the hunters this year; but not so for many a grouse. The date falls in a Sunday, the day of the week when bird hunting is forbidden in Britain. Monday the thirteenth will be the glory day. The grouse have a short reprieve.

A past August twelfth was much less happier for a law enforcement family in the U. S. A follow-up to that occurrence occurred at the end of a later August. Stay tuned.

-30-

 

Harry Truman: A war criminal? No way.

Today marks the 73th anniversary of the United States’ atomic bomb attack on the Japanese city Hiroshima. Three days later, a similar bomb was dropped on Nagasaki.

Shortly thereafter, Emperor Hirohito took the unprecedented of addressing his people by radio to inform them that the war was “not necessarily going in Japan’s favor.” (This may have lost something in the translation, but has been used as an example of Japanese understatement.)

Recent years have seen quite a bit of attempted historical revisionism and doubts, particularly by the left, of the morality of President Truman’s decision to use those weapons. Many have gone so far to brand Truman as a war criminal. General Dwight Eisenhower, no less, is reputed to have voiced such concerns a the time, though he later repudiated that sentiment.

World War II was a total war, at least for the primary belligerents. If total war does not end in total victory for one side, and total defeat for the other, it does not end—a cessation of hostilities is merely a truce and the fighting will inevitably resume.
The 1914-1918 conflict was a total war for the European adversaries, but not for the United States.  Active fighting ceased with Germany agreeing to an armistice. At the time of the armistice, German troops were still on French and Belgian soil. None of its adversaries occupied any part of German territory except its overseas colonies. Per the terms of the peace, the German army withdrew across the Rhine and disbanded, essentially unmolested in the process. The manner of what was essentially a conditional surrender made the Nazis’ claims of a “stab in the back” of a victorious army by politicians and bankers plausible. Little more than two decades later, the world was plunged into and even greater and more destructive war in involving the same belligerents.

Not so after 1945. The western allied powers had learned their lesson. They demanded unconditional surrender from both the Germans and Japanese. In May, after its cities had been destroyed, in some cases utterly, by air raids, and British and American ground troops had penetrated deep its homeland, Germany unconditionally surrendered. Japan meanwhile fought on, even though its cities had suffered as much or even more destruction as Germany’s. Japan’s samurai culture held that there was dishonor in surrender. Defending its many Pacific island possessions, that army often fought literally to the last man.

A plan for invasion of the Japan islands was formed. Casualties were estimated to be in excess of 500, 000 American service men killed. That estimate of casualties has been disputed by revisionists. One estimate by some planners reduced that number to 193,000 killed, wounded, and missing. But did that matter. To paraphrase Air Marshal Arthur Harris, head of the British Bomber Command, were all the cities in Japan, who started the war, worth the life of a single United States Marine?

Fortunately for those soldiers, sailors, marines, and airmen, the bombs made a ground  invasion of Japan unnecessary. Many American lives doubtless were saved.

Bret Stephens of the New York Times (formerly with the Wall Street Journal) wrote on the occasion of the 60th anniversary of Hiroshima/Nagasaki:

“Historical judgments must be made in light not only of outcomes but also of options. Would we judge Harry Truman better today if he had eschewed his nuclear option in favor of 7,000 casualties a week; that is, if he had been more considerate of the lives of the enemy than of the lives of his men?
“And so the bombs were dropped, and Japan was defeated. Totally defeated. Modern Japan is a testament to the benefits of total defeat, to stripping a culture prone to violence of its martial pretenses.”

Stephens is correct. The result was the closest to a Carthaginian Peace as the world has seen since ancient Rome. That left Germany and Japan with no doubt they had been defeated. Both changed their warlike culture. Since 1945, neither one has troubled the world.

Note: When going through the periodicals I have saved over the years, I came across an article written by Robert James Maddox, a professor at Penn State, who is also the author of Weapons of War, Hiroshima Fifty Years Later (University of Missouri Press 1995). Here is a link to that article for those interested. Why Truman had to use it

To Find the Gates of Heaven

The Legal Fight Over the University of Texas McDonald Observatory Legacy

William Johnson McDonald was born in December of 1844 when Texas was still, just barely, an independent Republic. His father Henry was a physician, one of the few certified medical professionals on the frontier. Dr. McDonald settled in Lamar County where Paris was incorporated in February 1845. William was educated at the McKenzie Institute in nearby Clarksville, and later apprenticed to a law firm in Mount Pleasant, Titus County. He served briefly in a Texas regiment of the Confederate Army, but saw little or no action and never left the state. After the war he returned to Clarksville and opened a law practice. Income from the practice enabled him to make small loans and buy Red River county warrants at a fraction of their face value during the depression of the 1870s. Those warrants regained their value after the depression and nearly overnight made William McDonald wealthy. Sensing he was in the wrong business, he abandoned legal practice and moved to Paris to become a full time banker. With his brothers’ help, McDonald founded several banking institutions in Clarksville and Paris. The banks proved successful and made McDonald a very wealthy man. He lived most of his life in Paris, but traveled extensively. Other than his banking career, he had numerous side interests, including literature, botany, geography, and most important for this discussion, astronomy. McDonald never married and had no children.

On May 8, 1925, McDonald executed a will leaving specific pecuniary gifts of $15,000 each to eight relatives, who appeared to be heirs at law. The rest and residue of his estate he gave, in trust, to the University of Texas for the specific purpose of establishing an astronomical observatory. The will nominated Morris Fleming, cashier of the Paris bank, and the First National Bank of Clarksville as co-independent executors.

William McDonald died February 6, 1926, nine months after making the will, at the age of 81 years. His estate was valued at approximately $1.25 million.

The will was admitted to probate in the county court of Lamar County, and later, after a contest and appeal, in the District Court. Seven heirs contested the will, alleging that McDonald did not have testamentary capacity at the time of execution. They generally denied the application and specially pleaded as
follows:

“On the 8th day of May, 1925, the date of making said purported will, and prior thereto and up to and including the 8th day of February, 1926, the day of his death, W. J. McDonald, deceased, did not have testamentary capacity to make a will; was of unsound mind; and did not have mental capacity to know, understand, and appreciate the character, amount, and extent of his property or the objects of his bounty, or the real disposition he was making, or attempting to make, of his property by the instrument offered for probate.”

A jury was empaneled and, after presentation of evidence, the court submitted the case on a single special issue: “Did or did not W. J. McDonald have testamentary capacity on May 8, 1925, at the time he executed the will in controversy?”Accompanying the issue was an instruction defining testamentary capacity:

“To make a valid will, the person making the will must have testamentary capacity at the time of the execution of the will. By testamentary capacity is meant that the person at the time of the execution of the will has sufficient mental ability to understand the business in which he is engaged, the effect of his act in making the will, and the general nature and extent of his property. He must also be able to know his next of kin and the natural objects of his bounty. He must have memory sufficient to collect in his mind the elements of the business to be transacted and to hold them long enough to perceive at least their obvious relation to each other, and to be able to form a reasonable judgment as to them.”

The contestants requested an additional instruction that

“If at the time of the execution of the will by [the testator] was under the influence of an insane delusion or delusions affecting the disposition of his property which he was making, then you are instructed that he did not as said time have testamentary capacity. An insane delusion is the belief of the existence of a state of supposed facts which no rational person would have believed.”

The district court refused the instruction and the jury answered that McDonald had testamentary capacity when he executed the will.

Upon appeal, the Texarkana Court of Civil Appeals affirmed. The issue in the Court of Civil Appeals was whether the court should have given the “insane delusion’ instruction to the jury.

The contestants made four contentions and referenced evidence allegedly supporting them that raised a fact issue as to McDonald’s “insane delusion” affecting his testamentary capacity:

• That McDonald was suffering with an insane delusion of poverty.

• That McDonald was suffering with an insane delusion that a certain relation in law had wrongfully deprived him of certain of his tablecloths, napkins, and books.

• That McDonald was suffering with an insane delusion that he had to protect himself against his nephew, one of the contestants, who, he thought, intended or desired to murder him in his home on Clarksville street.

• That McDonald was suffering with an insane delusion that some day astronomers would be able to see the gates of heaven, and when we got (to) that we would be able to see who was inside of heaven; that it was only a question of time when they did that, and then this would be the next great wonder of the world, and it needed only a little money.

The Court of Appeals affirmed the district court ruling that

“After a careful consideration of the record, we conclude that there is no sufficient evidence in respect to the objects of delusion, considered singly or all together, upon which to found a finding of fact of insane delusion or delusions affecting the testamentary capacity of the testator. We conclude the evidence is ample and greatly preponderates in support of the jury verdict, arrived at under proper and complete and duly approved instructions.”

Specifically addressing the insane delusion issue the Court discussed the testimony of Autrey Burnett, McDonald’s barber, to whom the testator said “some day or another astronomers would be able to see the gates of heaven, and when we got to that we would be able to see who was inside heaven.”

The Court opined that “[a]ll the evidence goes to show that the real force and substance of the spoken declaration was that of a pure predication or avowed belief of the scientific progress ‘some day or another’ of astronomy, with proper equipment and funds for observation. At most that was the force and effect of the spoken words of the mere chance conversation, even though couched in language extravagant or facetious.”

“. . . that it is plain that the will in suit, in its provisions as to the erecting and equipping of an astronomical observatory at the University of Texas, was not the result of any sudden impulse, but of a definite and deliberate purpose and testamentary intention formed and adhered to in former years by the testator while sufficient soundness of his mind and memory admittedly existed. The same specific bequest appeared in the first will in 1915 and was inserted in each of the five other wills made respectively during the ten years to 1925. The fact that the testator supervised his own large estate wisely and prudently during the times of these wills until the date of the will in suit opposes an inference that he was of an irrational mind to a degree to incapacitate him from making the will and disposing of his property as he did. It was long known to the testator’s most beloved and trusted brother that it was his purpose to make the specific bequest.”

Regarding McDonald’s alleged belief about astronomers some day seeing the “gates of heaven” and see in there, the Court said

“. . . testator was shown to be for years “very much interested in astronomy, plant life, and botany.” There is no pretense in the evidence of a sudden change or departure in the last will of testamentary intent indicated in the bequest to the regents of the University from ordinary habits of thinking and acting in that respect.
* * *
“And, as predicated by the testator according to the witness, ‘astronomers would be able,’ in figurative expression, ‘to see the gates of heaven,’ in the wide generalization of ‘some day or another,’ and “see who was inside heaven.’ In applying these considerations to the particular declaration it is most likely and natural that the words of the testator were ‘see the heavenly bodies’ rather than ‘see who was inside heaven.’ The very terms of the will, made two weeks afterwards, evidence the mind of the speaker at the time in ‘the study and promotion of the study of astronomical science.’ All the evidence goes to show that the real force and substance of the spoken declaration was that of a pure predication or avowed belief of the scientific progress ‘some day or another.’
* * *
“It is not capable of disproof that there may not be progress and perfectly established scientific theory, founded on the widest study of the celestial regions, of which at present we apparently know so little. The belief has prevailed among thinking man of telescopes being made with powers far exceeding our present ones to ‘see’ or observe ‘the heavens’ and ‘the heavenly bodies.’”

McDonald’s relatives were dissatisfied and pressed on to the Texas Supreme Court. From 1918 to 1945, the Supreme Court consisted of three Justices. It was assisted by a Commission of Appeals that comprised two sections each having three Commissioners. With the consent of the parties to a suit, the Court would assign some petitions for writs of error Section A or Section B of the Commission. The Court granted a writ of error and assigned hearing and consideration to Section B.

The Commission considered the contested question of whether the evidence presented raised the issue of insane delusions. If so, it opined, it was necessary to giving of the requested jury instruction the trial court declined to give. The Commission considered the testimony and concluded, and the Court concurred, that the evidence did raise the issue. Thus, the trial court and the Court of Civil Appeals erred in holding to the contrary. Commissioner Speer wrote an opinion reversing the Court of Civil Appeals.

The Commission recognized that

“[i]nsane delusions are not within themselves a ground of attack against the probating of a will, except as they show a want of testamentary capacity. In other words, the real defense is want of testamentary capacity, whether such want of capacity is produced by ordinary and complete insanity, or by temporary aberrations or insane delusions. The real vice, from a judicial standpoint, in either case that vitiates the instrument, is want of capacity. So that, where want of capacity is pleaded as ground of contest, though general in the form of its expression, nevertheless that mental defect may be proven in any of the ways recognized by the law of evidence.”

But the Commission found persuasive that

“a reproduction of the hypothetical question propounded by contestants to Dr. Guy F. Witt, a practicing physician, and a specialist in nervous and mental diseases, together with his answer, will show conclusively, we think, that the issue of want of mental capacity through insane delusions was raised by the testimony. The hypothetical question finds support in the statement of the evidence. . ..”

The hypothetical question and the answer addressed the four contentions that the Court of Civil Appeals considered.

The Commission concluded that “[w]e base our conclusion, not only upon the facts recited in the hypothetical question, which, as we have said, the evidence tends to show, but upon the affirmative answer of the expert witness that the testator was, on the 8th day of May, 1925, of unsound mind.”

The Court then approved the holding of the Commission on February 29, 1928, and reversed and remanded the judgments of the district court and the Court of Civil Appeals, and remanded the cause to the district court.

Re-trial of the case commenced in Paris in late October 1928. The evidence was more or less the same as in the previous trial, but there was more of it. Several witnesses testified that they heard McDonald talk about looking into heaven and there were arguments on whether he meant Heaven or the heavens. The barber who earlier testified that McDonald made a point of privately telling he believed some days astronomers would find the gates of heaven now said that McDonald was “off his caboose.”

The final argument to the jury lasted 6 ½ hours for each side. There are several appeals to the presumably fundamentalist religious beliefs of some jury members. One contestant lawyers went so far to argue that “if the University of Texas does not believe W. J. McDonald suffered from an insane delusion about the gates of heaven, that does not believe in the Bible and is no fit place to send Boys and Girls.” Apparently that worked for at least two—another demonstration that a trial lawyer must know his jury. It hung ten in favor of the will, and two against.

The University at this time had spent close to $80,000 (in 1928 dollars) on attorneys. The parties settled for distribution of $250,000 for the plaintiffs, and the balance of around $840,000 to the University. After solving several logistical problems, the McDonald Observatory, on a mountain near Fort Davis, Texas, became a reality.