The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-09-01
The Written Statement of No
vember 26 Said to Be
Equivalent to One.
WHEELER STATES HIS CASE.
Only a Testameutary Codicil as e
Destruction of the Later Will
Could Revoke It.

Van r. Paterson and Charles S. Wheeler
had it out yesterday morning in the mat
ter of Mr.. Paterson's opposition to the
Fair will of September "a. On Friday last
Mr.. Wheeler, having been ruled against in
his demurrer to Judge Patersons fourth
amended opposition, moved 20 strike out
from the opposition all reference to the
revocation of the will of the 2lst. He took
the position that the two grounds of con-
test-that of forgery and that of revoca-
tion-were inconsistent and must be
offered separately.
Judge Paterson asked for time to reply,
and the date was fixed for yesterday
morning.
Judge Paterson, in the course of his
argument, was called upon to distinctly
define his position, and in doing so that
of all the other contestants to the will of
the 21st, on at least one mater lal point
Judge Paterson claims that the republica-
ton, dated November 26 was in effect
re-execution of the will of the 21st, and
gives to that will, in law, the date of
Novem Der 26.
In spe aking of the matter Judge Pater-
son said: 1T was claimed here, if | I'M
derstand counsel, that the two points of
our contest must be settled separately;
that the allegation of republication and
the allegation OF forgery might not be
contained in the one contest. This we
deny. We hold that the date of the re-
publication is now the date of the will of
Septem Der 21 Ii there be any authorities
opposed TO this proposition they have not
come under my notice. 1t has been al
legged that cancellation, revocation or a
destruction by fire of a subsequent will
will not revive prior will. What then
Will revive prior will? A republication.
We have Will of September u, a will of
Septembe "a, under the republication a
viii of November %. Does not that settle
the controversy? 1t has been set up here
that we are compelled 10 state our two
grounds OF opposition.
81 wish to say to the court and counsel
that We are not oblieed to do so. If, after
consultation, we deem it advisa BILE we may
do SO, out the matter lies with us. Can
we be compelled 10 go before 9 jury and
say his will is a forgery, but we are IN
able to prove it and SO we viii now fall
back on the republication? For myself 1
would prefer to contest this will on the
ground OF forgery, but / am maintaining
here that l am not compelled to make the
contest upon any single ground"
MIR. Wheeler in replying said: Judge
Paterson takes the position that we have
no right to compel him TO state separately
his grounds OF contest. Again be says
tnat the date OF what is termed by him a
republication gives to the will OF Septem-
Der Il Its own date, but that it is not
therefore separate cause of action"
Mr.. Wheeler read some authorities in
line with his position requiring that
where two causes OF action are united
they may be required TO be separated.
With regard to the second point, he said:
Judge Paterson's position simply is that
the Will of the Z4th is revoked by still
later will. His argument would be OF
great effect if the republication took the
form of a codicil. All that was intended
by the written statement of November 26
was to revoke the will OF the oath. But it
was ineffective because the require ments
of the law were not fulfilled. 1t makes no
modification of the will OF the 2lst-does
not alter it nor cancel II. Ii is simply
written declaration, signed before wit
nesses, saying in so many words that the
will of the 21st was his last will"
Judge Paterson asked leave to put the
question: Suppose Senator Fair ha
again written his will on November 26 IN
the language of the will OF the Dist, would
not that have revoked the will OF the
24th2''
Certainly" said Wheeler, that would
be re-execution, not republication"
at is the same" said Paterson.
You do not plead it so. You state it
as republication"
I'VE state what was done. The law
does the rest.'
In answer to a question from Judge
Slack Mr.. Wheeler said: II do not hold
nor have / yet stated that the two grounds
of Judge Paterson's opposition are too in |
consistent to be joined. What | have said
is that they must be stated separately;
otherwise the court, the jury and the OPP
posing counsel are unable TO determine
the limits OF the proceedings or how they
shall meet and answer them. What
would be sufficient TO get the will of the
oath out OF the way9 A codicil making
some modification OF the provisions of the
earlier will or a destruction Of the late
will. A mere statement declaring the last
will not to be the last will or that al
earlier will is the last will is not suffi-
Gent"
You hold that the So called repub lica-
ton Is OF no effect at all ?" asked the Judse.
"Of no more than would be an oral
statement of mine to my clerk to take a
Will out OF my safe and burn it and L
should go TO my grave thinking it burned
and 1t should turn up afterward."
suppose the will OF the 21st had been
reattested Novem Der 26?' said his Honor
THAT is the distinction l would call the
courts attention. TO. Reattestation is one
thing, republication is another. To re-
attest the Will is TO attach the signature
and date AT the foot of the Will itself and
1t becomes part OF the document. Ii would
then carry the later date"
Mr.. McEnerney. by leave of Judge Pat
eiSoi, tOoh up the unread, making the
statement that he was not of record in this |
branch of the case. He stated that there
were many authorities to support the
statement that where a Photographic state
ment is made referring to a previously
prepared will it makes that W i'll a new
will OF the date of the later writing.
We'll, said Wheeler, 'let us get at
what 1t does. Does it attest the wilI?'
Il don't know That you would call it a
reattestation."
as it a codicil then?"
can't say we should call it codIcil, |
and not re-execution-it makes it a new |
will. There are whole group of cases to
support the statement. Suppose" con- |
tinued McEnerney, that Mr.. Fair, instead |
OF writing the will, simply had written. |
1t is my wish and desire that nv prop,
erty be distributed according TO the |
method set forth in my will dated Sep |
TENDER 21,' and this had b en- pro- eriv /
sworn to before witnesses, what would /
you have said to that?"
You are coming 10 my way OF think
ing" said Wheeler. That would be a re-
exc cution, an entirely different natter |
at would be re-execution without |