The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-06-30
MRS, HEYDENfELDT'S CASE
She Wins an Important Vic
tory in the Supreme
Court.
The Children Did Not Respect It's
Terms and Therefore Cannot
Enforce 1t.

The Heydenfeldt case, which for nearly
five years has been dragging along in the
courts, was decided by the Supreme
Court yesterday in favor of Mrs. Elizabeth
Heydenfeldt. BY the decision Mrs. Heyden-
feldt is relieved of the necessity of paying
to her stepchildren about $65, 900. The
case is a peculiar one, and has attracted
much attention from lawyers on account
of the novel points which it raises.
1t appears from summary of the case,
which is included in the opinion, that Mrs.
Heydenfeldt wishing to prevent sensa-
tional proceeding against her husbands
will in the Probate Court, enlisted the
services of Adolph Sutro to effect COM
promise. An agreement was, after some
negotiations, secured from the other side,
by which they agreed to drop within thirty
days all court proceedings, and in case
Mrs. Heydenfeldt failed to carry out her
portion of the agreement she was to paw
over to her stepchildren $4,000
AT that time she supposed that her share
of the estate would be between 5000, 900
and 100000, but she found that instead
the entire estate did not amount to much
over $107, 800 and that she had life in
terest in that amount.
The agreement was made on November
7, 1891, and on November Is, six DAYS
after, she served notice on the children,
Mrs. leila O. Hellings. Thomas O. Heyden-
feldt James 0. Heydenfeldt and Inc O.
Heydenfeldt, that she had decided to with
draw from the agreement.
The children would not withdraw their
action in the courts. however, until the
thirty days allowed in the agreement had
expired, but continued to prosecute their
petitions for a revocation of the probate of
the will.
About 10 o'clock at night on December
Z, 1891, the last of the thirty days men,
toned in the compromise, two men, who
were clerks Of the attorneys of some of the
appellants, undertook to serve certain
paper on Mrs. Heydenfeldt as she was
going through the yard of her residence.
She was frightened by the men and ran
away from them into her house. The
paper was thrown after her and was found
in the yard the next morning.
1t is contended that this paper consti-
tuted an offer to perform their part of the
agreement contained in the contract of No
vemher 7. The paper, as found, was not
signed by any one of the appellants, but
it had been prepared and the names
signed to it by attorneys for some of the
parties interested.
The lower court found that this paper
was not, on its face, an offer to perform the
terms of the agreement, and that it was
not made in good faith; nor was it exc
cuted by the parties in interest themselves
in accordance with the terms of the orig
inal document. The court below also took
cognizance of the fact that after this offer
of compliance the children continued the
prosecution of their petitions in the Pro-
bate Court as before.
On December II, 1891, Mrs. Heyden.
feldt filed petition for. a family allow.
ance and Mrs. Hellings filed an opposition
to it in which she affirmed that Mrs. Hey-
denfeldt was not the wife and her chill
dren were not the children of Solomon
Heydenfeldt.
The Supreme Court says in rendering
judgment:
Appellants contend that it was enough to
offer to perform, and that if their offer was not
good, they were excused from making any
offer by respondents notice that she would not
perform. Their complaint, however rests upon
an alleged offer and not upon an excuse for
not making an offer.
But it is clear that in this case appellants
could not recover from respondent the specific
amounts of money named Tin principle the
purchase price, without performing their cove
nants or making bona.fde offer and tender
of performance and remaining in position to
keep that offer and tender good.
This they did not do. They did not perform
any of their covenants, and their alleged ten
hereinbefore noted, was evidently not bona
fide, and was not kept good By continuing to
prosecute in the Probate Court they them
selves broke the contract. They put it out of
their power to perform their covenants, for
they continued to do the things which those
covenants restrained them from doing. They
were like the vendor of wheat who, while con.
Stunning the wheat himself, is suing the vendee
for its price. For these considerations. without
determining other questions in the case, we
think that the judgment should be affirmed.
Justice Mcfarland wrote the opinion
and Justices Henshaw and Temple con.
CURED.