The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-03-15
SENATOR FAIR
MADE 4 MISTAKE.
A STIPULATION THAT DISINHERITS
A CONTESTANT Is NOT
OPERATIVE.
OPPOSED TO PUBLIC POLICY.
A CASE OF A LOST WILL THAr INDI-
GATES THE LINE or
BATTLE.

They have been having lost will case
up in the State of Washington, which has
just been decided by the Supreme Court
there, and the lawyers in the Fair will con-
troversy have been reading its dry periods
with more absorbing interest than the
average small boy displays over the stacca-
toed sentences of Dick Dead Eye.
1t presents many of the difficulties that
attend the case now before Judge Slack.
The will in question was that of Daniel
S. Harris, who died at Los Angeles, in
August, 1890, leaving an estate in the city
of Fairhaven, Wash. He left a will dated
April 6, 1871, attested by two witnesses.
The will was lost and a copy was presented
III lieu of it by the legatee Benjamin F.
Harris. The strength of his position in
face of the loss of the will was that it had
been recorded long before in the Recorder s
office of the county where it was filed, as a
precaution taken by the testator against
the loss or theft of the document.
But the next of kin and heirs at law OF
the deceased demurred and opposed the
proceeding. The will was sustained in the
lower court, but the Supreme Court over
threw it, or at least reversed the judg-
ment of the lower court on the material
points which the attorneys for Charles L..
Fair are de pending upon in their contest
ing contention; that is, the proving of the
provisions in the lost will. In the Wash
ington case the lower court is reversed with
this terse statement:
'The provisions of the will were not
proved, as required by law"
1.-THE Legislature of this State has said
that no will shall be allowed to be proved
as a lost viii unless its provisions shall be
clearly and distinctly proved by at least
two credible witnesses" 1t says: 'This
language is mandatory and cannot be dis
regarded by the courts"
The law of Washington is the law of
California, as the code of this State was
adopted almost entire by Washington. In
the case referred to there was but one liv-
ing witness who, according to the evidence,
ever saw the will and he never saw it after
he signed it as a witness, and he did not
read 1T at the time and had no knowledge
OF It's contents except what he learned in
conversation with the decedent and from
an examination of the recorded will. The
opinion OF the court continues thus:
There is absolutely no proof of the pro-
visions OF the will, except the declarations
OF the decedent, If we exclude the alleged
record from our consideration, as we are
obliged to do If for no other reason, be-
cause 1t is not proved to be a correct COPY
In New York the statute, which is other
wise like ours, provides thata correct copy
of will shall be equivalent to one witness
in proving its provisions. But here we
have no such provision and even a copy
proved to be correct would not take the
place of a credible witness. The term
witness, as used In the statute, eVi-
IDENTIFY means person who is sworn and
testlhes IN cause and not document or
paper merely. For the error indicated the
Judgment must be reversed"
In this case, where the will had been
spread upon the public records as precau-
ton in the event of the real thing being
lost or stolen, where the testator had talked
repeatedly about the will, saying that it
had been recorded and detailing its provi-
sions, the proponent loses for the lack of
valid proof as to its contents.
1t can be more readily understood in face
of such showing of the difficulty of suffi-
GENTLY proving will why the struggle
over the method of procedure in the pro-
bate, now pending before Judge Slack,
should be so long and bitter.
The attorneys opposing the will declare
that it will be next to impossible for the
executors to prove the contents of the will
by two credible witnesses, while the ex-
ecutors declare that they have several
competent witnesses to all its provisions.
Still, however. they very naturally seek to
avoid the necessity of being put to the test
and seek the easier path to their end.
The attorneys for Charles L. Fair believe
that the stipulation in the will that serves
to disinherit the heir who opposes the will
does not necessarily operate to do so. 'If
the court finds that Charley Fair had good
reasons to believe that the instrument in
question was not his fathers last will, or
that undue influence was exerted over
him in the making of the will, or fraud in
any way attempted in connection with it,
even though none of these things be
proven, he will not be disinherited BY the
provision in the will designed to guard
against contest suit" said Heggerty yes
terday. ''The best authorities on wills
and the law appertaining to them declares
that these provisions are against public
policy and are designed to entrench
fraud beyond the reach of the courts.
They can serve their purpose only where
litigation is carried on with the malicious
design to waste and destroy an estate, or
obstruct the carrying out of the provisions
of the will"