Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-08-30
CoLTON's RELATIVES.
HOW THEY HAVE BEEN PROVIDED
FOR By HIS WIDOW.
Arguments of Grove l.. johnson, w.
W. Foote, Geo. r. d. Hayes ct
al. in Cotton VS.. Cotton.


| The case of Cotton VS.. Cotton came up
| before Judge Sawyer in the United States
! Circuit Court Monday, August 18th. The
full text of the complaint was published
last December, when W. w. Foote, attor-
| ney for old Mrs. Cotton, of New York, first
filed papers in the case. The complainants
are Mrs Abigail Il. Cotton, mother of the
late David D. Cotton, and Martha Cotton,
sets forth that General Cotton, of San Fran
cisco, died in 1878, leaving a will devising
all his property, real and personal, to his
wife. Ellen NJ. Cotton, with this proviso:
" recommend to her the care and protec-
ton of my mother and sister, and request
her to make such gift and provision Tor
them as in her judgment will be best. l
also request my dear wife to make such
provisions for my daughter Helen, wife OF
Crittenden Thornton, and Carrie, as she
may in her love for them choose TO eXer-
else
The complaint goes on to state that Mrs.
Ellen NJ. Cotton probated Colton's will and
received an estate worth one million dollars,
and which has since largely increased IN
value That she has
MADE NO PROPER PROVISION
For Colton's mother who is old and poor
and sick. and for Coltons sister, whose
whole time is spent in waiting on her bed
ridden mother During the life OF Colton's
father he loaned Cotton $4,000, all the
family property, and took Colt0n's note
therefor. and subsequently the note was re-
newed in favor of COlton's mother, leaving
his sister Martha absolutely without funds
of any kind BY reason OF sickness, the
cost of doctors and medicine, old Mrs. Col
ton was not able to live in comfort on the
scanty means at her command, and she
PRAYED that her daughter-in-law, Ellen NJ.
ColtoI', of San Francisco, should be forced
by the United States Circuit Court, in
equity, to make the provision necessary for
an old, sick woman, and which Ellen NJ
Cotton was instructed to make by the will
of the deceased General d. ID. Cotton, out
of the abundance which he devised to
her.
MRS. CoLToN's DEMURRER.
To this complaint Mrs Ellen Cotton, of
San Francisco, demurs as follows Ellen
NJ. Cotton demurs to the complaint, first,
that it does not show cause for any relief to
complainant; second that the Court has
no Jurisdiction fourth that if any cause
exists it is founded on a State equity and
claim: fifth, that the claim occurred four
years before the date of suit; sixth, that II
so appears in compliments bill; seventh
that the Probate Court has already deter
mined all the matters and things i'll COM
plainant's bill" The demurrer is signed
Crittenden Thornton, solicitor for Ellen NJ
Cotton, and Stanly, Stanly and Hayes OF
counsel.
Proceedings opened in Court by Critten-
den Thornton arguing on the demurrer.
He took the ground that the bequest to
Mrs. Ellen Cotton was absolute. and the
recommendations could be carried out or
not as she pleased The language of Gen
eral COlton's request was not sufficient to
create a trust in favor of his mother and
sister His argument or the question of
statute of limitation took until noon, and
after recess he resumed by citing cases TO
the point, that were the option of acting or
not acting, Courts Of equity will not inter
fere to create trust. Mrs. Cotton
COULD ACT AS SHE SAW EFT.
1t was Il gift of the broadest kind. She was
freed from every kind of bond the usual
process of the Probate Court was specially
dispensed with Counsel whole argument
was that Cotton had devised his whole es-
tate to his wife, Ellen NJ. Cotton. She was,
under the law as his wife, entitled to one
half What he did devise to her above her
share, was a clear gift over which she had
the completest control; and further when
an expressed wish of testatOr is to some
definite amount, that sum is held as trust ;
but no such trust is created when no detin-
lite sum is named. Suppose no will had
been made, and Cotton died worth 5000, 900.
Out of this the house and lot worth $3.50,
600. and lone Coal stock, worth 100000, did
not bear interest The half of what did
bear interest was $165, 900. Mrs Cotton, as
widow. was entitled to half anyhow, and,
in case no will had been made, Colton's
mother and sister would have been entitled
to only oue-sixteenth each of the other
half. which at s per cent. would make their
| joint share 81 GOO a year, and Mrs. Ellen NJ.
| Cotton had voluntarily given the complain
ants a larger sum than that. Counsel has
held that no American Court would ever
| construe such a suggestion rs was in the
| Cotton viii, as
\ BINDING GIFT.
Such course would be to make mans
will for him, and take away the power pos
| sesScd by every man TO devise his estate rs
| he pleased. \ testator can either give or
not give. Merely to recommend one to the
| Iiberaity of his deyisec is no Gift.
| Rutherford e. Hayes, Of defendants coun-
| sci, cited nine cases.
Grove L. johnson. of Sacramento, who is
| associated with Railroad Commissioner W.
| w. Footc and II. Footc for the complains
| ants. Abigail r. Cotton and Martha Cotton.
spoke IN reply. He asked for special con-
sideration in view of the magnitude Of the
case and said it was 4 most monstrous idea
| that Courts of equity had been dwarfed and
| crippled Of their power in California, and
| lower Courts exalted to such degree that
because the Probate Court had passed on u
| will it could, like the grave cover every
| thing up so that it might not be reopencd
The grand duty of a Court of equity was 10
revise and correct the
ERRORS OF \ LOWER COURT.
The demurrer sets forth that because the
Probate Court has settled the Cotton estate
these complaints have no standing here
Such doctrine is rcpugnant to all ideas of
equity; why, it is denied hy the PROPOSE
ton itself. The estate must of necessity
be distributed before Martha and Abijail
Cotton could have cause for complaint. The
property of ID. u. Cotton came to his wife
Ellen, charged with trust for his mother
and sister. Counsel here quoted Il large
number of textbooks and authorities, to
show that trust need not be created by
precise language but any intention of a
testator's desires was sufficient to create q
trust if the object was clearly defined. He
also read many authorities on the jurisdic-
ton of the Court. Continuing his argu-
ment, he said that the authorities all agreed
that trust could be determined by an in
tmation of testator's wishes, and it was the
duty of the Court 10 consider the moral
obligations he was under to provide for his
mother and sister. and all collateral facts of
his likelihood for wishing to do SO. There
was every reason why Cotton should wish
to provide for his relatives. His mother
was sick and bedridden, poor and helpless
His sisters whole time was taken up caring
for his mother, and thus he was relieved
from his share of that care and hehosdcn
to his sister therefor. His mother had
loaned him $4,000, her all, and his sister
had consented to the loan.
! THE FIFTEEN THOUSAND DOLLAR NOTE.
Some discussion ensuing as to whether
| that note had been paid or not, Mr.. John
son showed that the bill in equity did not
show any payment.
Well, said Crittenden Thornton, we
| will admit that the Colton's East are as
| poor as poor can be, and save the argument
| on that fact
Mr.. Johnson continued Look at the
moral reasons why Cotton should provide
| for his relatives. Look at his great wealth,
his natural feelings as son and brother.
Then the obligations he vas under from
4