The San Francisco call., 1896-11-17
nbiect of the eenuineness of the pencii will ),

| subject of the genuineness of the pencil will -
Tney deny, however. that that will is not gen.
| uine and insist that it be granted probate.
So eager did they then seem 10 have the pencil
! will probated that, accompanying their an
swer. was a notice given by them that they
would move the court at once for an order set
| ting the cause for immediate trial.
1t may be noted here that these ladies had,
on the 18th of March, 1895, in pleading
| signed by their own hand and countersigned
| by their same attorneys and counsel, posi-
| lively affirmed the genuiueness OF this same
will and prayed The court to admit 1t 10 pro-
bate. By what lapse of memory the intorma-
ton which they possessed on the 18th of
| March, 1895, and which enabled them then to
affirm positively that the pencil VIII was
genuine and in the most solemn manner to
pray the court to granti 1t probate, had been
expunged from their minds, so as 10 make II
possible for them to stste 70 tne same 1 eoGr.'
nation and did not entertain even so mueh as
q belief on the subject, is a problem which the
record contained then no sufficient data salts
factorily TO solve Neither did it, then, very
clearly appear why they were sui urging for
proba te a document about the genuineness OF
which they themselves disclaimed all infor-
nation and belief. Nor could 1t, then, be
readily conceived why they still persisted In
remaining parties 10 the et1tlon filed Dy
them on the 18Th of March, 1899, In which
they positively averred that will to be genuine,
when they had just filed an answer to the
contest of the same will, in which they aVerred
that they had neither information nor Dellel
upon the subject
The coniradictoriness-to use no stronger
term-of their petition became SO manifest
that on the 18TH of September, 1896, they
Withdrew their petition for the probate OF the
pencil will, leaving on record, however, their
answer TO the con test OF the testators grand
son. This new move left them on the record
as ostensible adversaries of the contestants OF
the pencil will-in other words, ranged them
in the contest of the will ON the same side as
myself and opposed 10 their brother, the testa-
tors grandson. In reality, however, 1t is
manifest that they were acting in con1unc lion
with their ostensible antagonists and, While
/ a iv N
accomplish the same end. II any doubt could
have been entertained upon the subject II
would have been dispelled by the remarks OF
one OF their attorneys made upon the taxing
OF their dispositions and reiterated here IN
open court on the 9th of last month, that they
were opposed to the probate of that will. At
| length, under the pressure of q motion to
strike out their pleading on the ground that
it was fraudulent and fled in collusion with
! the other side they, on the 31st OF the same
month, withdrew their answer.
BY this withdrawal l am left upon the
record the sole supporter OF the pencil Will.
Having now fully stated the circumstances
| attending the production of the pencil Will,
its early espousal and ultimate deSertion by
the children of the. decedent, the question
arises, what is il my duty to do?
| Lest the step which l am about to take
should be construed into an approval of the
course pursued by the children. or into re-
Hection upon the pencil will, l desire to state
| again that have not row and never have had
any doubt as to the genuineneSs of that will.
| No reason has been shown why the conclusion
arrived at by me, when l filed my petition, on
| the 18th of March of last year-a conclusion
! then in accord with the unanimous opinion
OF the three children and of all their legal adj
| visers-should be changed. That, under the
circumstances, and for the reasons stated.
| they nave changed, is surely no reason. l
know of no rule. either in morals or in law.
which reqnires that l follow them in the
various deviations of the courses they have
| pursued. was convinced the will was genu-
! Inc then, and in that conviction still abide
Should !, however. continue to urge the
prayer OF my petition and participate in de-
! Tending he contest made against it?
Opposed to this course appear many reasons
! OF expectancy and propriety both.
cannot conceive 1t my duty 10 thrust upon
| the descendants of the deceased will which
/ they all unite in opposing, simply because
| cannot agree with them upon these grounds of
! opposition. Upon this subject they should be
! entitled 10 exercise their own wishes. As long
| as any OF them desired the will probated il
was manifestly proper that an executor named
| therein should cooperate to accomplish the
deS ired end. But, tor the same reason, it
would seem hardly consistent with proprlety
| or delicacy for him to oppose them when they
resolve to abandon their former position. A
will is but an offer OF the testator to bestoW
his bounty upon those lie has selected and
named. He may make the offer-he cannot
| compel its acceptance.
! II all parties interested under the will
| choose to decline it and refuse to present it
| there is no power to probate it, for without a
| petition there can be no probate, and except
| by person interested under The viii there
can be no petition. In view of the combined
| opposition of all the legatees under it still to
|
| would reduce itself 10 effort to secure
| thereby the emoluments which may be incl
| dent 10 its executorship. To make a contest
| for that end alone would place me i'll posi- tion
/ both odious and undesirable-one which do
| not think 1t incumbent upon me TO occupy
There is one further consideration which
should not, IN candor, be overlooked. The
| cost and expense OF forcing the probate of the
| will in the face of the opposition arraye ed
against 1t would necessarily be not inconsid-
! erabe e. can no reason why should ex-
pend any money of mine to probate a will for
| others. The funds OF the estate are not under
/ my control, but under that OF the adversaries
of the pencil will. The attorneys of the chill
dren and the administr ators have lately
agreed that $4,000 be paid to Judge Van r.
Paterson for Inc purpose of waging this con-
! test. l have not the ability to make any sim
liar disbursement. The fees of witnesses, ex-
/ perts, reporters and juries may be trife to
/ those who have millions at their command,
but would operate as 8 severe tax upon my
| slenderer means.
/ contest carried on under such disad-
vantages might result in undeSeryed defeat,
and defeat might tend inferentialiy TO reflect
| upon the validity OF certain deeds which Mrs.
Craven, "a lady well, wioely and most favor
! ably known in this City, aud ''a great friend
| OF Senator Fair holds to valuable property,
and which she asserts were given her by the
Senator at the very time OF the execution of
| the pencil will. In fairness to the lady, con-
troversy which so closely affects her rights
should be carried on directly by herself and
| not indirectly by me.
Upon review of all the facts, am impelled
i to the conclusion that, as duty required that
l follow the example OF the children when
they petitioned for the probate OF this will,
! should follow it now when they retire.
| Therefore | hereby formally withdraw and
dismiss the petition filed by me on the 25th of
March, 1895, praying for the probate of the
last will and testament ofJames G. Fair, dated
| September "a, 1894.
MARC LIVINGSTON, Petitioner.
| j. d. Sullivan, Lansing a. MlZner, Herbert
| Choynski Attorneys for Petitioner.
/ ". W. Foote, Delmas u Shortridge, benson &
| De Haven of Counsel.
/ ,el,1, 1o;, orx;r a.
| withdrawal above mentioned has been in any
manner influenced by certain recent publica-
| tons, we hereby state that said withdrawal
| was agreed upon by all OF us, aud the foregoing
| statement thereupon drawn up on the after
neon OF Monday, the 9th day OF Novem Der,
| 1896.
Signed by all the attorneys and counsel.