The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-06-15
MANS INCONSISTENCY.
Motion for New Trial Denied With
Sermon.

a Motion for a New Trial Denied With
Sermon.
Judge Sanderson also delivered a sermon
when be yes erday denied the new trial in
the partition case Of Duncan +. Macdonald
against the estate Of bis brother, c. E. S.
Macdonald Tried before Judge Levy in
August, 1891, Judgment substantially was
given with the prayer Of the complaint.
Duncan claimed 10 be q partner with his
brother ever since 1853, and the Eight-mile
House property was involved among others
with a liquor and general merchandise bust
ness, besides tie conducting Of an Illicit
stu, though no money was made out Of the
last mentioned.
One Of the points made was that upon the
death Of Charles, over whose estate there
has been much contest, Duncan applied for
letters, which he could not have done were
he apartner, and he set forth that the prop
erty belonged to the estate. The c0nten-
ton of his clai N to half the estate was sug-
Rested 10 have been an after thought, for on
the death OF Charles he had written letters
TO his mother containing 0 assertion Of
claim as a partner in the estate. nor mani
Tested any intention 10 make such q claim
In the future.
Duncan did say on the trial that he did
not at first intend to assert his partnership
claims, but was satisfied then merely TO take
as an heir and equally with the others,
which would have been oDe-ffth. Being an
old man without wife or child or deDen-
dents, one-ffth would be sufficient for his
needs-'iu fact" as the Judge said, che was
willing TO f0regO his legal claim as partner
and assume the role OF benevolent brother,
and thereby mingle great deal OF phllan-
thropy with very small amount OF busl-
ness"
change came over the spirit Of his
dream, and he elected 10 stand upon his legal
rights and 10 fight for their enforcement
This was claimed to be Inconsistent with
his stand in this action Grant il" says
Judge SandersOn, "But the law does not
stand upon any such narrow basis as
mans Inconsistency. he may be incon-
sistent and infiTm Of purpose and as vari-
able as the shade, and yet successfully MAN.
tain bis contention IN court OF law
"a mans cause is like unto his charae-
ter-not to be judged by the few weak
spots 10 il. but by the many strong ones. l
imagine this is not the first time, nor VIII IL
be the last, when a cOmbatant has or may
wage TO a successful issue his contention IN
a court Of law, though his aTmOT De weak
at certain points The law not only does
not require litlgant to be consistent, but
he need not be generous, nor even just, and
yet come Oh victorious IN the struggle, and
he is not required, as counsel contend, TO
give sound reasons tor his change of front
as to his intentions, if they do not pass be-
yond the point Of an estoppel.
"At the death Of his brother, Duncan,
being about to succeed 10 considerable
property, and animated apparently with
generous impulses, and being in a philan-
thFopic mood. stood with smiling aud De-
Djgnant face turned toward his brethren
and with open and ontstretched hands well
coined them each and all to share equally
with him in the estate of their deceased
brother. The procession Of kith and kin
approaches, and among their number the
plaintiff sees, or processes 10 see, an iile-
Ultimate hal f-bro,ber and beligerent sis
Ter. and for these reasons, be they coed CT
otherwise, he says he changed his attitude.
"At any rate the native hue OF bis Teso-
linton became sieklied over with the pale
cast of thought and slowly but surely and
firmly tie open aud generous palm tightly
closed, the outstretched arm was with
drawn. the beatifc cOuntenanee disaD-
peared, and this eTstwhilc bounteon5 brother
changed front entirely, turned his bacf !
his fathers children, hardened MS nealt ana
enforcement ii lis legal right, win the