The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-05-07
THE EXECUTORS WIN
First Blood Against the Fair
Children in the Prelim-
mary SkirmiSh.
MUST CONTEST OR PASS"
Judge Slack Decides That the First
Will Has the Floor at
Present.

The great controversy over the estate OF
the late James G.. Fair took a big stride
yesterday in the direction of clearing the
| ground for action. For some time the
main question has been which of the two
whistle "stolen' or "penciP" will
should be first considered for probate. All
along the proponents of the second or
'pencil' will have withheld from filing a
regular contest to the original or stolen
will. Judge Slack yesterday handed down
an opinion that may force them to take
action on those lines.
The proponents of the second will, which
is dated September a. 1894, are Charles l..
Fair, Mrs. Herman Oelriehs and Miss V1r-
ginia Fair, and the decision is adverse to
their motion for the precedence of that
will. On the other hand, the winning side
| in this preliminary skirmish is composed
of the special administrators OF the estate,
| who are proponents of the original or
stolen Will dated September Il. 1894. 1t is
doubtful whether the victory will be any
thing more than a temporary advantage,
however, as the attorneys for the Fair
children will now have small reason for
not fling a regular contest.
Judge Slack also sustained the demurrer
to the opposition filed by Margaret j..
Crothers and others to the probate OF the
second will on the ground of ambiguity.
The opponent must plead in the form OF q
complaint. The same objection applied to
the opposition filed by the infant heirs.
There was the usual crowd of legal talent
in Judge Troutt's courtroom where the
matter came up before Judge Slack yester-
day. All the parties in interest were repre-
sented with the exception of the infant
heirs, and that was accounted for when the
case was called, and Reuben III. Lloyd,
attorney for Mrs. Herman Oelrichs and
Miss Virginia Fair, rose and asked for a
continuance until 2 P. NJ, as Judge Van K.
Paterson was engaged in another action
in another department. After some dis
cussion the matter was postponed to
Wednesday next. Then the courtroom
was stilled as the court read its opinion on
the main question as to the precedence OF
the wills. His Honor said substantially
A motion has been made by certain OF the
proponents OF the will of September "a that
the petition for the probate OF the will ef Sep
TENDER Il go on the calendar until sucn time
as the contested applications to probate the
viii of September "a shall have been heard
and determined. 1t Is argued, in effect, that
the court, in the exercise Of sound discretion,
should grant the motion because the applics-
ton to admit the later will to probate should
be heard first in order, and becs use the moving
parties should not be forced to file an opposi-
| ton to the earlier viii and thus to incur risk
of forfeiture under its provisions should the
application to admit the later will to probate
be unsuccessful. No written ground OF oppo-
sition to the probate of the earlier will have
been fled and the proponents of that win in.
sist that the court should therefore proceed 70
hear the application to admit the will TO pro-
! bate
1t is true, in a measure. that the petition fol
| the probate of the earlier will is opposed by
the petitions to admit the later will to probate,
yet the filing of such latter petitions is not the
| probate" of the earlier will within the mean
! ing of section 1872 of the Code of. Civil Pro-
| cedure. The earlier will is resisted argument
| atively only by the applications for probate OF
| the later will; and the proponents of the ear
| lier will are entitled, according to the elemen-
tary rules of pleading, to have direct opposi-
| ton to their petition filed in order tn at they
! may meet such opposition, and that issues GER
tain in their character as to the validity of the
will which they PROFOUND may result. Be-
sides, the code distinctly requires OF a contest
ant of will that he file written grounds OF
! opposition to the probate thereof" and there
can be no contest OF a will unless this
is done. "The probate OF WILL" says
So Cal, 103, lean be contested only
upon written grounds OF opposition filed
by person Interested" And again, the
| Supreme Court, in Estate of Robinson, 8 Cal.
Dec. lat, says; "Before there can be contest
to the probate OF will the contestant is
required by section 1872, C. c. P, TO file writ
ten grounds of opposition to its probate, and
the petitioner and others interested in the viii
| may answer these grounds Of opposition; and
it is the tissues of fact thus raised which this
| section authorizes to be tried by jury. The
| contest does not arise unless the written
! grounds OF opposition present such issues of
| fact for determination. There can be no scon-
test unless the written grounds of opposition
are OF such nature as to form legal objec-
| ton to granting the probate OF the will, and
| unless also the contestant presents these
| grounds Tor the consideration OF the court"
! The earlier viii being thus uncontested,
should the court proceed To admit 1t to probate
| Section 1906 of the Code of Civil Procedure
| provides: "At the time appointed for the hear
| ing, or the time to which the hearing may have
| been postponed, the court, unless the parties
| appear, must require proof that the notice has
been given, which being made, the court must
near testmony In proof OF the Will" 1t is con-
templated, by this section, that the court may
| postpone the hearing; and independently of
| any express authority to postpone, the court
must undoubtedly have such power, as Incl
ton. The causes for which the hearing may
be postponed should be good causes; but what
are good causes must rest largely in the discre-
ton OF the court, and unless that discretion IS
| abused, no legal complaint can be made. If a
postponement be ordered 1t should be to a
! time certain and not indefinitely; for 1t might
well be urged that By ian an
| stating new proceedings at some future time.
The court should obviously be slow in any
case, and especially in the present case, to
|
| consequences are not unlikely to ensue.
J 1t is to be observed that the motion before
| the court is not for an indefinite postpone
| ment; 1t is that the petition go OFF the calen-
| dar; but treating the motion, as made, as in
substance motion for an indefinite postpone
ment, it should not be granted for the reason
suggested and for the further reason that the
petitioners not parties to the contest of the
! later will, and it would be not proper exer-
else of discretion but an abuse OF discretion to
compel them to await the final determination
of that contest, over which they have no con-
| troll, and which, perhaps, may last for years.
The possible risk of forfeiture incurred by
the moving parties, should they contest the
earlier will, does not furnish satisfactory
reason why the court should exercise dis
| erection in their favor in granting the motion
even if its discretion could be otherwise exer.
cised without abuse. The court would not be
| justified in granting the motion on the posi-
bility that the probate of the later viii, which
the moving parties PROFOUND, may fail.
| There are but two courses apparent to the
court open to the moving parties: either "a
! contest the earlier will, which may, undoubt
| eddy, be done upon the ground that it was re.
| voked by the later viii &c. C. p, 1912 az
| Burns vs. Travis, lit, ind Az, or to permit the
earlier will TO be admitted to probate, which
| admission would be necessarily set aside
| should the later will succeed Campbell VS..
Logan, 2 Bradf 80; matter OF Hamilton, Z
| Con. 1851.
The motion must be denied.