The San Francisco call., 1896-01-25
Attorney Pierson Argues That
an Executor Cannot Con.
test a Will.
D. NJ. DELMAs' CONTENTION.
Judge Slack Has Taken the Knotty
Problem Under Amusement.
The Teachers Fund.

The argument on the demurrer to the
petition of DR.. Marc Levingston to enter a
contest OF the Fair will of September d
was resumed in Judge Slack's court yes
terday afternoon by Attorney Pierson of
Pierson & Mitchell, who represent the four
trustees appointed by that will.
He took up the authorities cited last
week by Mr.. Delmas of Delnas IL Short
ridge, who represent DR.. Levingston, and
declared that not one of them was appli-
cable to the single point at issue, which
was: Is Dr. Marc Levingston, the petit
toner, person qualified under the Cali
fornia statute to contest will? In other
words, was the petitioner an interested
person-that is, one interested in the will ?
Mr.. Pierson argued that this question
could only be answered in the negative,
because the statute pointed out who were
the interested persons Iegatees and deyi-
sees. An executor was not an interested
person, and could not enter the contest of
|. will Particularly was this true of an
executor of an unprotected will. To
hold to the contrary would open
wide the doors for those who sought
only to tie up an estate in a long
contest of litigation. The proper pro.
GtQuI0 WdSy uG hOldf W bllS Will IUSE
filed go to probate, and then, should that
be admitted, the second will could be en-
tered for probate, and If that were admit
ted it would mean the revocation of the
probate of the first will.
Mr. DeImas declared that this would be
most unfair procedure. Because the pc
titioners OF the first will, with unseemly
haste, had been at the clerks office early
in the morning after the death with their
will and their petition to have it probated,
they did not thereby acquire any vested
rights nor precedence over will of later
date The counsel had spoken of the pos
sibility of the will proposed by DR.. Lev
ingston being a forgery; it was by no
means admitted that the will entered by
the four trustees was authentic and genu-
inc. These were questions for the court to
decide, and they should be decided at one
and the same time, with neither prefer
ence nor precedence to either. Suppose
both wills had been filed simultaneously
Itcould not then be argued that the docu-
ment of earlier date should be probated
before the second anu supposedly last will
was considered. And should the fact that
the proponents of the first will had sue
ceeded in filing their petition little earlier
in this case act as bar or deterrent against
the second and last viii aud rob it's propo-
nents of their equity in the case or post
pone the hearing of their contest? Mr.
DeImaS tnougnt the court would not SO
decide.
The whole argument of Mr.. Delmas may
be summed up in this proposition: Being
named as executor in the will of Septem-
ber "a, 1894, DR.. Levingston had the un-
doubted right to present that will, alleging
ii to be the last will of the decedent. This
is conceded on all hands. And since that
will revoked all former wills, the right to
maintain that it was the last will, which
is conceded by all to DR.. Livingston, neces-
sarily involves the right to maintain that
the will of the list of Septembe (Which is
prior in date) has been revoked and is not
the last will. The right to maintain the
will of the 24th as the last will is. there
fore, right to oppose the claim that the
will of the 21st is the last will.
As to the amended petition in the matter
of the schoolteachers' trust fund, Mr.. Del
mas was granted five days in which to file
an amendment.
Then the question on the demurrer to
the petition of DR.. Marc Levingston was
submitted to the court.