The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-04-27
Which Should Be First Con-
Sidered by the Probate
Court 2
NEW FILINGS IN THE CASE
Counsel Argue on the Best Method
of Procedure-No Contest
Yet Filed.

although it still remains technically under
the surface, is rapidly being brought into
overt existence. Two wills have now been
filed for probate, the original or 'stolen"
will, dated September D. 1894, and the
holograph or 'pencil" will, dated Septem-
Der "a, 1894. Yesterday counsel argued on
the proper precedence for probate to be
allowed the respective wills, in the absence
of the filing of any regular contest.
Charles L. Fair, Theresa A. Oelrichs and
Virginia Fair also filed an answer to the
opposition filed by Van r. Paterson as
guardian to the heirs under the first will,
and asked that the will of September "a be
admitted to probate. Several minor mat
ters pertinent to the estate of James G.
Fair were also disposed of by the courts
yesterday.
In the main argument before Judge
Slack yesterday afternoon on the method
of procedure as to whether the first of sec
ond will should first be probated or con-
sidered for probate, Charles Wheeler APP
peared for Charles L. Fair and Executor
DIR. Marc Livingston, and was met by Will
liam NJ. Pierson and Carrot McEnerney
for the special administrators, T. G. Croth-
ers, w. S. Goodfellow, j. S. Angus and IL.
C. Bresse. There were also present Reu-
ben H. Lloyd, Knight & Heggerty, Mount
ford Wilson and Robert Mitchell, attor-
neys for parties in interest.
Attorney Wheeler, in his motion for the
probate OF the will of September "A, 1894,
urged that the court had special and Incl
dental jurisdiction and discretion to so de-
termine He laid special stress on the
broad incidental powers of the court sitting
as a court of probate as instanced by the
proceedings of the New York courts,
the practice of which was closely followed
in the California courts. He cited the
cases of the estate of Hamilton and the
estate of CASTOR Oxnard in point. AT least
the issuance of letters testamentary should
be postponed until the factum of a second
will was established.
The court was sitting to expedite the
distribution of the estate with as little cost
and complication as possible, and in the
absence of any contest the court would de-
eide that the last will revoked all Others,
and its consideration would dispose of all
Others Such would be the orderly, sensi-
BILE sequence of events.
Counsel contended further that if the
court decided to consider the will of Sep
TENDER q first such decision might drive
three of the heirs to contest, proceed
ing which would according to an allega-
ton of the first will make their requests
void and in itself furnish another argu
was contended that the profoundest equities
of the case were in favor of this course.
William NJ. Pierson, for the special adj
ministrators, replied that the court had
no discretion in the matter, its course hav-
ing been plainly laid down by the code.
He contended that if there were second
will the beneticiaries should enter con-
test and thus make themselves parties to
the proceedings. Should the second will
be considered his clients might be ex-
Guided for years without any right to force
it to hearing. Every day exigencies for
immediate action in the estate arose. and
it was absolutely necessary that the first
will should be probated. There remained
year in which to prove any alleged Sec
ond will, and the only method OF so doing
was by filing contest.
Carrot McEnerney, as associate counsel
for the special administrators, explained
more fully that Charles l.. Fair, Mrs.
Oelrichs and Miss Fair were not parties to
the application to probate the first WILL
and the only way they could make them
selves parties to the proceeding was by
filing an objection to its probate. The
hearing could not be postponed on the
urging of stranger or intermeddler.
Attorney Wheeler then closed, maintain
ing that his clients were not strangers or
intermediates, but had right to be heard
as heirs at law and devisees, summoned
into court, in court and recognized by the
court. He emphasized the justice and
common-sense of his claim that the second
will, which would dispose of all prior wills,
should first be considered.
The question was then submitted and
the consideration of the petitions of Marc
Levingston and the special administrators
for the probate of the two wills respectively
went overuntil May 6. The citation of the
special administrators to. show cause why
4 -
Warren IL Malley for grading work done
was continued to the 30th inst.
Charles L. Fair Theresa A. Oelrichs and
| Virginia Fair have filed an answer to the
| opposition to the probate of the will of
| Septem Der "a, 1894, filed by Van r. Pater-
sen, alleged guardian ad Item ana attor-
ney for Herman Oelrichs Jr. Thomas Fair,
Sarah Fair, James Fair, Margaret Fair,
William Fair, Theresa Fair, Virginia Fair,
Emma Fair, James W. Fair, Eva Lena
Fair, J ohm A. Fair, William Lundy, Jessie
Iundy, Mary Lundy, James Fair and
Wesley E. Crothers, denying that the will
of Septembe "a is not the last will and not
written by ]. G. Fair and asking that it be
admitted to probate.
The special administrators have been
| authorized to pay the Hibernia Bank in
terest on a note for 100000 to the amount
of S1666 68; to enter into contract with All
Now to plant 100 acres of the Lake of
Petaluma ranch with potatoes and to pay
Fred STACK & Co. $114 to repair the base
ment at the corner of Washington and
! Drumm streets.
The special administrators have filed suit
against Joseph Marks for $4,000 on a pro-
missory note; and against William s.
Tevis, l.. o. Kellogg, Laura B. Roe and the
! California Safe Deposit and Trust Company
as executors of the will of George H. Roe
| for $1,000 due on contract for grading GER
tain blocks in the Western Addition in the
vicinity of Francisco, Bay, Cough and
| 0nta ria