The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-08-22
which will is the will of Senator Fair is to say
the least of sufficient Importance TO require a

which will is the will of Senator Fair is to say
the least of sufficient importance TO require a
judicial determination.
Again it is said: but why two contests? the
brothers and sisters and minor children are
contesting and the child Herman Oelrlchs Jr.
Will have the benefit of their action. But 1t
seems to me that it would be dangerous
thing to establish such precedent. me other
contestants may or may not have the ulsposl-
ton Tor one cause or another TO continue the
contest.
The court cannot proceed safely upon any as
sumption that this or that may occur, ana 1t is
sufficient for the court to know that there IS
only one absolutely safe way to protect its
wards interests, and that is my making II q
party to any proceeding in which the child
rights may be affected.
admit that if the court thinks 1T entirely
safe 70 let the contest proceed wItnouL repre-
sentation by Herman Oelrichs Jr. 1t has the
right to do so and should do so. do not agree
with Mr.. Lloyd, however, that simply because
the statement of Mr.. 0elrichs is the only testl-
mony before the court as to the validity OF
either will the court is bound 10 say tnat
contest is not necessary or proper.
Both wills are now before the court Under
other conditions existing should attacn great
weight 10 the opinion and wishes OF MT. Oei-
richs, even where his interests were adverse 10
those of his child
should be willing to act upon his Judgment
and trust to his integrity to do right by his
child, but as said at the oral argument, we
are here dealing with thing-the will OF Sen
ator Fair-and the immense interests OF child,
which, so long as they are before the court, we
are bound TO protect upon legal principles ana
not upon condolences in the opinion or
integrity of any individual or set OF ino!vldu-
ais, no matter how close may be their ties TO
the child whose interests are affected, and no
matter how intense may be our latin IN the
rectitude of their conduct.
The guardian has no right to decide that the
will dated September "a Is the last vii! OF his
boys grandfather. Ceases cited IN oral argu-
ment)
At the oral argument Mr.. Lloyd cited case
In support of his claim that before the court
can authorize a contest 1t should near the evil
dence and determine whether there Is reason
able cause for such contest. So far from being
in his favor, that case cuts directly against
him. What the court decided in that case was
that until it had heard the evidence OF all the
parties it could not determine whether it was a
proper case for the allowance OF the costs and
expenses of the litigation.
The case assumes that there may be con-
test carried to decision without the court
having the least idea as to the merits OF the
controversy before the case. is tried. Any
other assumption would be absurd and would
put the court in the ridiculous position OF first
trying the case to see which way 1T should be
decided and then requiring it to be tried again
simply for the purpose of deciding 1t.
In submitting the matter to the court, con-
fess that ii the court can see its way clear to
grant the motion of Mr.. Oelrichs, shall not be
sad over my retirement from the unpleasant
relation in which my present duties place me
with respect to that honorable and most
worthy gentleman. l simply desire to go upon
the records as not having neglected the inter
ests of this boy which are placed in my hands
by the court.
He shall not confront me in the future with
the charge that if had taken the steps which
were necessary to protect his rights he would
have had enough to take care OF himself and
those dependent upon him.
And submit again, in conclusion, that there
is only one safe way to proceed in this matter,
and that is to take every step and every pre-
caution for the protection of the minors inter
est which ordinarily prudent and careful
business man would take in protecting his own
interests if he were in a similar situation. In
doing this We must cessarily cast out all con-
ton.