The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-03-17
JUDGE SLACK DECIDES TO ACCEPT
A CERTIFIED Copy OF
THE WILL.
SOME DISCREPANCIES FOUND
THE Two COPIES OF THE WILL DIE
FER IN SEVERAL MINOR
POINTS.

uOuDt CndI Ii Will De easy TO prove the Will.
Judge Slack rendered his decision YES
terday on the application for an order to
| file certified copy of the stolen will. This
decision allows the executors to file a
certified copy of the will, and declares that
the copy is sufficient to be considered the
will itself. This is a victory for Garrett
McEnerney's supplemental petition.
Judge Stacks court was crowded with
| learned men of the law yesterday morning.
Every attorney prominently connected
with the case, except Reuben H. Lloyd,
was in court. knight, Heggartv, Wheeler,
McEnerney, Pierson, Mitchell, Goodfellow'
| Van r. Paterson and Russell Wilson were
| among those present. Judge Slack called
| up the matter at 1880 o'clock, and imme-
| diately began to read his decision. 1t was
| remarkably free from legal verbiage, and
the ordinary citizen had no difficulty in
understanding al his Honor's remarks.
Judge Slack opened his remarks as fol-
| lows:
motion is made by the petitioners for the
probate of the will of James G. Fair, deceased
for an order authorizing the petitioners to file
copy OF the VIII certified by the clerk of this
court. The motion is made upon the ground
that the will was slolen after it was produced
and deposited with the clerk and after pro-
ceedings for the probate thereof had been in
stituted. The motion is resisted for several
reasons presented in an ingenious argument
1t is first objected that there is no sufficient
showing OF loss OF the will, even if it be con-
ceded that the VIII may be lost, within the
meaning OF section 1045, C. G. P, and that the
clerk had authority to certify copy of the
will. The only evidence before the court of the
fact OF the loss is the affidavit of the chief
deputy of C. f. Curry, the County Clerk The
affidavit is somewhat inartificiallv drawn but
it nevertheless states that the will twas
stolen and distracted from the files of this
court; that 1t has never been returned and is
not now among the files OF said COURT
Judge Slack went on to state that County
Clerk Curry had tried to recover the will.
but that it was not necessary for Curry to
make an affidavit how he had searched for
it, as would have been necessary in case the
| will had been lost. The statement that
| the viii had been stolen and the afirma-
| ton that the custodian no longer was in
possession OF the will, and that he is I'M
| able to discover its Whereabouts, are suffi-
cient. The decision continues:
| Consequently upon such evidence. the court
is justified in permitting an authenticated copy
| to be filed. This evidence is sufficient to war
rant the court in ordering a copy of the will to
! be filed.
| Judge Slack stated that it was not neces-
! sary for the executors to file any affidayits
as they were not the custodians of the will
| at the time of the theft. Neither was there
any need of an affidavit that the copy of
| the Will annexed to the notice of motion
really was a copy of the will so long as a
certified copy is there and now produced !"
The decision then went on as follows:
1t is next contended that there is no law
authorizing the clerk to certify copy of the
will. If this be true it follows, as matter of
course, that the certitcation was a futile act
and hence it would be necessary to prove the
copy of the will in some other manner. Section
1893, Code OF Civil Procedure, provides that
"every public officer having the custody of
public writing which citizen has right to
inspect is bound TO give him on demand GER
tilted copy OF it on payment OF the legal fee
therefor. and such copy is admissible in evil
dence in like cases and with like effect as the
| original writing"
Judge Slack states that the will was
public writing" and that it came under
the classification of "otficial document"
The Court then said:
Under section 1898, therefore, the County
Clerk was authorized to certify a copy of the
will, and such copy is admissible in evidence
in like cases and with like effect as the original
writing; and the will as an official document,
may be proved by the original or by a COW
certified by the legal keeper thereof Section
1918 (6) c. c. 2. 1t therefore follows that the
certified copy of the will stands on the same
legal footing as the original will.
In speaking of the last objection to the
acceptance OF the certified copy, Judge
Slack said
It is further claimed in opposition to this
motion that copy of the will cannot be re-
stored under section 1915, C. C. p (which
provides that "if original pleading or
paper pc lost the court may authorize copy
thereof to be filed and used instead of the
original" 1t has been shown that the will
when produced and delivered to the clerk be-
came an official document OF the clerk, and
when proceedings were instituted for its pro-
bate 1t became an official document in such
proceedings. why was it then not "paper''
copy OF which the court might authorize to
be hled? 10 say that the will was not a
paper" is an assumption not warranted either
by the terms OF the section or by any other
provision OF the code: But it is argued that
the section is inapplicable because the will
was not and could not be ''flled" until its ad-
mission to probate, and therefore the court
cannot at this time authorize a copy to be
tiled" This argument proceeds upon too
rigid Interpretation OF the word "filed -
The will at the time it was stolen was docu-
ment In court proceedings in the legal custody
of an officer of the court. 1t was required by
the law to remain in his custody, and when it
was stolen copy could be Supplied" under
the AUTHORIZATION OF the section that copy
filed means or includes supplied just as
Hlost'i means or includes 'stolen.' But
whether this Interpretation of the section be
correct or not is OF little consequence since the
court has inherent power to supply a missing
paper in proceedings before it. This inherent
power was recognized by the Supreme Court
IN Slchler vs. Look, 93 Cal, 608, in the follow
ing language, which is also IN accord with the
decision of this court heretofore made upon
demurrer s. Il to .d the supplemental petition
Tor probate: When Jurisdiction has once
been acquired it is not lost by a fall
ure to preserve a record of the acts
by which it was acquired, and the acts of the
court in exercising its inherent power to
amend its record or to supply lost record will
be presumed to have been properly exercised.
But, it is argued, the court cannot permit
copy OF the will to be supplied under this Sec
ton, since to do so would be to prove a lost
will in contravention of sections 1338-1341,
G. G.. p, which, under section 1713, C. c. p,
furnish en- exclusive method by which lost
will may be proved. But in the first place the
court is not now asked to prove lost will for
the purpose OF establishing and admitting it to
application under sections 133S-134l before
the court TO admit lost will to probate but
an application to admit to probate produced
will.
For these reasons the objections are over
ruled.
When Judge Slack finished his decision
Attorney Wheeler took an exception and
asked for ten days in which to file his bill
of exceptions.
Carrot McEnerney desired to prove his
certified copy of the will.
This brought Attorney Wheeler to his
feet with long objection. He stated he
was not prepared to go on with the proof
of the certified copy because he did not
believe that the court would REQUIRE him