The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1895-03-30
KENYON WILL CASE
THE ADMINISTRATORS UPHELD.
Contestants Given Thirty Days to Pre-
pare Full and Complete Transcript
For the supreme Court.


wise. the contestants in the great Kenyon
will contest must file a new and more
complete statement OF facts IL they wish
the superior court 20 approve IL So de-
cided Judge Langley in a decision handed
down yesterday morning. ia which he
sustained the demurrer filed some time
ago by the administrators Of the estate
10 the alleged statement OF facts which
the contestants had submitted for the
courts approval.
When the original contest over the will
came of before Judge Langley, the jury
found for the defendants and for a time
IL was question among riie many law
yers for the contestants whether they
should go to the expense OF appealing the
case or wait until an attempt was made
TO distribute the estate and then come in
ana light the matter on the ground Q I
the principal legatee under the will be-
Ing foreigner. could not under the law
inherit real estate. II was finally agreed
to appeal. but the expense of doing so
was held down by the preparing OF a
statement OF facts which, instead OF con-
taining full record of the proceedings
in the lower court. contained only the
material points which the supreme court
would be called TO pass upon. After the
alleged statement was filed the admins
traitors came in and demurred to IL and
Judge Langley's decision sustaining the
demurrer was the result. In his decision.
which involves important legal points.
Judge Langley says:
''On the 5th day of March, 1895, there
was filed with the clerk and afterwards
presented to me what counsel for contest
ants call a proposed statement OF facts
as step In the course OF their proposed
appeal from the final judgment entered in
this cause.
mo amendments are offered or pro-
posed TO such statement, but instead re-
spondents move the court for an order on
contestants TO present a substantial state
ment of facts within a limited time or,
falling TO do so, that the paper filed and
presented be stricken from the court files.
1.-The statute requires the appealing
party 10 prepare and file a statement OF
facts as proposed by him and serve copy
of the same on the adverse party and no.
tice TO other parties. Within ten days
after service such other parties may
serve on the proposing praty amendments
10 the proposed statement. in which case
the Judge shall settle and certify the
statement as a statement OF facts. But
II no amendment shall be served within
the given ten days the proposed statement
shall be deemed agreed to and shall be
certified accordingly. Sec. Ill, Hunuey's
Code.
'Tf the paper before me, and TO which
my official certificate is asked. is a pro-
posed statement of facts within the
meaning OF the law. then In the absence
OF any amendments ] would be warranted
in concluding that the adverse party ac-
cepted Il as a proper statement and that
no amendments were desired. and my
duty under the law and decisions OF the
supreme court would be clear. State VS..
Arthur. Wn. 35S.
The appealing party may have in aid
Of his appeal all rulings, decisions, evs-
dence, papers. proceedings and exceptions
in the cause, or so much thereof as may
be material to an appeal made part
OF the record by the certification OF a
statement of facts. Sec. 10. Huntley
This record when made up imports verify,
and Il false the reviewing tribunal is mis-
informed. misied. and appeal for the cor
rectlon Of errors or trials de novo becomes
futile.
"a statement OF facts IS the act OF the
trial Judge and. although the law imposes
the duty OF preparing IL In the first in
stance upon the party appealing. never
theess Il Is as though the judge had
called upon such party for full and fair
statement OF all the material matter &C.
curing al the trial II Is no longer n
controversy over the issues In litigation.
but n fair exemplircation OF what was
said and done 10 maintain and overthrow
the respective theories of counsel at the
hearing. and like all dealings with the
court or Judge. 1t should be candid. truth
full and fair. II viii be a question before
the supreme court whether. on the record
made here. the findings. conclusions and
anal Judgment of this court shall be af-
nrmed. modified or reversed. ! think the
appealing party owes X as a duty to both
courts to propose oil the material facts
occurring in the cause. without which II
would not he even a proposed statement
~. -
'~The paper before me contains hut a
partial statement and / cannot say that
II WAS proposed for more than appears
on It's face. ] cannot agree with counsel
for contestants. IN argument. that they
may propose practically their side OF the
case and leave respondents 10 present
their side by way Of amendments. II the
legislature contemplated such n rule II
would have more nearly equan2ed the
time between the contending parties 20 do
the work Ey this construction az the
statute the appealing party would have
thirty DAYS certain. and possibly ninety.
10 prepare his part while respondent
would get but ten days for as much or
more work,
This construction would place before
the fudge two proposed partial statements
Of fact. or rather two ex parte state
Tnents. each coIored moro or less ny the
theories 81 counsel. from which irrec0n-
cFiahle mass the Judge world be required
70 settle and certify a proper statement
for ne information 81 the supreme court
need hardly observe that such a con-
sfrurrion would put the more difficult and
enharra ssing part % the service upon the
Judge
The faet that the law allows so much
time for statement and so Nstle for
amendment makes II quite clear that the
former should be- a. complete a practica-
BE. while amendments should apply only
% matters formal or o. doubtful ma
te-Eslttv. In this case the oral testimony
,,s,tnled about twelve DAYS OF the heArin (
and involved the examination OF a large
number Of witnesses. The issues weTe
sharply drawn and the contest very
.,Iase ore. The testimony was very con-
atetire 81 nearly ali material points %
inquiry ana IN my judgmen, tire surest
Way - make fair statement would De
- make fail oae.
The findings % fact in thls case,
whether warranted or not. and a number
OF tha Instructions 70 the tuTy were based
in part upon the courts co0sidere ton -
the oral testimony Upon these appellants
have assigned errors. ard how shall TIE
court Of review determine the question
without the substance ot the same testi-
rnony before IL
As much as desire . facilitate -
view OF causes heard before me BY Ire
,sosfrt os aral resort. YET tie duty IS cast