The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-08-22
BABY OELRICHS' RIGHTS,
Ex-Judge Paterson Opposes
the Fathers Claim of
Control.
AGAINST FAIRS PENCIL WILL.
The Attorney Says That 1t Is a For.
gerry, or That the Senator
Was Insane.

Ex-Justice Van R. Paterson filed brief
yesterday replying to Attorney Reuben H.
Lloyd in relation to the guardianship of
Herman Oelrichs Jr., matter that is i'm
portant in the Fair will contest.
Attorney Lloyd represents Mr.. and Mrs.
Oelrichs and Judge Paterson is the attor-
ney who was appointed by Judge Slack to
represent the minor heirs, twenty-five in
number, including "Baby" Oelrichs.
According to the terms of the first will
the three children of Senator Fair were to
have the income of the estate and at the
death of the survivor of the three the
property was to go TO the minor children.
Herman Oelrichs Jr., if he should survive
the three, would take fourth of the prop
erty.
Under the second will the estate was
with no provision for "Baby" Oelrichs or
the other minors. Seeing that the inter-
ests of his youthful clients were repre-
sented in the first will Judge Paterson
began the contest.
Herman Oelrichs was thereafter ap-
pointed general guardian of his son, and as
guardian he objected to the proceedings
begun by the attorneys. He did not want
to have "Baby" Oelrichs contest the second
Will. On that point Attorney Lloyd sled a
brief some time ago, and TO the arguments
then presented Judge Paterson replies, the
question being on the right to represent
the minor Oelrichs. In his brief Judge
Paterson says:
do not deem it necessary to go into an ex-
tended consideration of the points made by
Mr.. Lloyd in his brief, as they were in my
opinion answered In my oral argument. Mt.
Lloyd, in his oral argument and brief, assumes
s. position which begs the main question to be
determined by the court, j. e., which one of
the two documents filed for probate is the will
OF Senator Fair?
The fallacy of the proposition that Mr. DEL
richs may determine and has properly deter
mined that the pencil will is valid stands
naked in the light of the admitted facts.
If the will of September 81 was made by Sem
ator Fair, and if it be true that at the date of
that instrument he desired to preserve intact
his vast estate for about half a century after
his death, and for that purpose labored upon a
testamentary disposition and provided pen
atty for any one who should attempt to upset
his plan-then the will made only three days
later is q forgery or Mr.. Fair was crazy when
he made it.
II is incredible that man having the abil-
ity TO acquire and hold such property and
devise such scheme could, while in his right
mind, change his intentions so radically in so
short q time.
But do not eoncede that Mr. Oelrichs has a
right to exercise any discretion upon the facts
in determining whether the child has any in
terests which will be protected by a contest.
1t is sufficient for the court and guardian to
know that If the earlier will be admitted to
probate the child will have vested future in
terest, an interest which under the laws of
this State (code sections cited in oral argu-
menD may be disposed of by law, transfer or
succession.
This being the case, the question of proba.
DllltleS possibilities TO SuryiVOrGhin CufS
no figure In the determination of the question
as to whether or not there should be contest.
1t is not a case for speculation as to who will
outlive the other or presumption as to the du-
ration of life according to tables or physical
conditions and ages of persons interested Ma
ture, not the court or counsel, will determine
that.
1t is g. ficient to know the testator has pro-
vided in a will filed for probate that in q GER
tain contingency this child shall have por-
ton OF his estate. Whether the contingency
will ever happen on which he is to enjoy what
was thus left to him is not, as l said, matter
for conjecture by the court or counsel, and the
question as to whether the parent has any in
terests adverse to the child cannot be deter
mined upon consideration OF such matter
/ do not think Mr.. Lloyd has succeeded In
showing that the father and mother have no
interests adverse to the interests of the child
II the pencil will Is probated the child gets alb
solutely nothing by testamentary disposition,
while If the other one is admitted he takes a
vested future interest in the property.
If the pencil win is probated the mother
takes absolutely her interests in the estate, if
the prior will be admitted she does not. The
husband takes the same under each will, but
no answer has been made to the point made at
the oral argument that both at common law
and under the code the husbands interests are
identified with those of the wife.
Mr.. Lloyd says that fathers and mothers
have always been appointed by the court to
take care of the interests of their children and
1t would be monstrous rule to hold that SIM
ply because child may die and by the law of
inheritance the parents succeed to his right,
their interests in such case would be adverse
to those of the child and depar them from &C t
ing as guardian. But no such rule is invoked
here; nor do the exigeRcies of our case drive
us upon such ground.
II parent were suing to quiet title to a tract
of land in which his child held an adverse in
terest, he would hardly be fit and proper
person as guardian of the childs estate to repre-
sent the child's interests, and the court would
not permit him to- He might claim TO be able
to act with entire impartiality, but he would
not be permitted to try the experiment. The
court simply would not allow any speculation
to be INDUCED in, but would say that 1t is
sufficient to know that there is conflict of
interests.
Aside from the interest which the law i'm.
putes. Mr.. Oelrichs must naturally prefer the
disposition made of the estate by the pencil
There can be no question about this. In de-
termining the question of interest, as between
the guardian and the minor, the courts do not
eonfine themselves to the property interests,
but will consider anything which will natur-
ally affect the desires and action of the
guardian.
Then, quoting some points of the law
in the case, Judge Paterson continues:
guardian ad litem may be appointed our
code says, at any time when the Judge deems
it expedient, Notwithstanding the.child may
have a general guardian. Among the pro-
visions relating to guardian and ward it is
provided that nothing contained in this chap
ter "affects or impairs the power of any court
TO appoint guardian to defend the interests
of any minor in any suit or matter pending
therein" (section 1853, G. c. P.). Counsel con-
tends that this section and section 372 are
general and are limited by section 171S be-
cause of the words in the latter section "when
they have no general guardian in the county"
but he does not notice Townsend VS.. Tallant
33 California, page 49, cited by me at the oral
argument, where it was held that the minor
heir although he, had a general guardian In
the county, had no guardian quoad the pc
tition.
So that even in the absence of section 1859,
and although there be a general guardian in
the county, the appointment of a guardian ad
ntem would be proper.
On page 5 of the brief Mr.. Lloyd declares that
in the event of contest OF the first will the in
terests of the other minors represented by
those of Herman Oelrichs Jr.
Whether this be so not cuts no figure in
the present con troversy, but 1t is certainly not
correct. Neither Herman Oelrichs Jr. nor any
other minor takes any interest under the sec
ond will, and in the event of q contest of the
second there will be union of interests in all
fha p,tporq In have aaid SECOND will DphaJd