The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-09-04
The Supreme Court Says the
Whole Estate Must Go to
the Widow.
LAW AGAINST FERMENTATION.
Justice HenshaW's Declarations on
Principle That Affects
Other Trusts,

William Walkerley trust to be invalid,
reversing the decision of Judge William L.
Greene in the Superior Court at Oakland,
and the entire estate is awarded to the
testator's widow, who is now Mrs. William
F. Burbank, the wife OF a newspaper man
at Los Angeles. The present value OF the
estate is nearly 100000, and Mrs. Bur-
bank will get the entire property.
The principal heirs who are shut out by
this decision and the amounts bequeathed
to them in the will are: William Walker
lev, the posthumous child, now dead,
100000; Mrs. Blanch Walkerley-Burbank,
100000; Andrew Rumgay, a grand
nephew, $1,000; Mary Windley (his sister,
or her husband, $500 annually until both
should die.
Other heirs were: Martin Bacon, Frank
Barker and John Walkerley, nephews of
the deceased, residing in San Francisco;
Mrs Betsey Walkerley-Newman, niece of
deceased, San Francisco; Mary S. Dough-
tv, Jane johnson, Jane Capes and Hannah
Allison, nieces, residing in Lincolnshire,
England; Ann Hollingsworth, niece, Der
bvsh1re, England; Mary Smith, niece,
Yorkshire; Ann Smiley, niece, York; Mar
tin Walkerley, nephew, Grimsby; John
Walkerley, nephew, Brisbane, Australia;
Elizabeth Rinington, niece, Manchester,
England.
The law under which this decision is
given is supposed to apply also to the
trusts created by Senator Fair and Joseph
Macdonough, and the Fair contestants
are expected to make the most of it.
Summing up that law, Justice Henshaw,
the author of the opinion, says, all the
Justices cOncurring:
The law has seen fit to insist that the meas
ure of the period of suspension shall be lives
in being, and it Will not countenance the sus-
pension for any fixed period OF term of years
for the sufficient reason that during the time
of such limitation, however short, the person
capable of conveying the absolute interest
might die-a possibility not to be endured.
So it happens that whenever a testator,
through temerity or ignorance, violates the
plain mandate OF the statute, as in this case,
and creates a trust by which the absolute
power of alienation is sought TO be suspended
for term of years, he must pay the penalty
of his rashneSs or folly in the destruction of
his cherished design.
The rule against perpetuity does not apply
to personal property trusts. Private trusts IN
personal property which respect the power of
alienation must be limited by private trusts in
realty TO lives in being, and the tru SITS here are
consequently destroyed by the same vice
which invalidated those first considered.
The trusts being void, it follows as to prop
erty attempted to be devised in trust that the
testator died intestate. 1t therefore descends
TO the heirs living at the time OF his death.
This is a complete reversal of the de-
cision by Judge Greene. The latter upheld
the will and codicil of the millionaire,
which gave the widow $2400 a year and
provided a trust TO run twenty-five years,
with Columbus Bartlett and Martin Bacon
as trustees.
William Walkerley the capitalist, died on
Septem Der 16, 1887. He left a handsome
young wife and an estate valued at about
$500, 600, consisting at about 5000 of per-
sOnal property, the Pacitc-Union club
building known as the WaJkerley block,
days after his death the will was filed, and
the litigation over it has been kept up ever
since.
The contest in the Oakland court brought
to the rich young widow, who was an Oak
land girl, her second husband, in the per-
son OF William f. Burbank. Mr.. Burbank
was reporter on one of the Oakland pa
pers. He did the work for his paper at the
probate trial. Thus he became acquainted
with Mrs. Walkerley and he married her
about two years ago.
The child of Mr.. and Mrs. Walkerley,
born soon after the capitalists death, died
last year, and the portion of the estate
that would have gone to him reverts to the
mother.
The clause in the will that is declared by
the court to have illegally established
peTpetuity is as follows:
To sell and convey all the trust property and
estate at the expiration OF twenty-five years
from the date of my death, and to distribute
the proceeds equally among my nephews and
nieces or their heirs-the descendants or heirs
of any deceased nephew or niece taking col
leetiVely the share which their father or
mother would take provided he or she
were living; provided, that no final sale
or distribution of the trust estate be
made during the lifetime of my wife,
Blanch NJ: Walkerley, but only after
the expiration OF twenty-five years from
the date of my death and after her death.
Upon the distribution of the proceeds of the
sale OF the trust estate among the parties entl-
tied, then this trust shall cease and determine.
Should any one or more of my said trustees die
or resign the remaining trustees or trustee
must Immediately appoint some suitable per-
son TO fill the vacancy, so rs to keep the num-
Der OF trustees at three.
The attorneys in the case were: H.
Flrebaugh for the executors, Fred F. Whit
ney for absent heirs, B. B. Newman for
other heirs, of which his wife is one,
Rodgers IL Paterson for Mrs. Walk erley.
Mr.. Burbank, who married Mrs. Walkerley,
is now one of the owners of the Los
Angeles Record and be is interested in
other papers.
George A. Knight of knight & Heggerty,
one of the firms of attorneys Interested in
the Fair will contest, was seen last evening.
'As whole" he said, 1--WE consider the
decision of the Supreme Court to be rather
favorable to o. client, Charles Fair, and
likely to have bearing on the contest
which has been begun. We have not yet
had copy of the decision made, and so
cannot particularize, but the general tenor
of it seems to incline our way.
1.-The most important item to US appears
to be the temper of the court regarding
trusts created by wills. This seems to us
favorable to breaking them"
That the points raised by Rodgers & Pat
terson, the attorneys for the widow in the
contest of the Walkerley will, have created
widespread interest in the State is evil
denced by the number of applications for
copies of their brief, which number over
1000, since the document was filed four
months ago.