The San Francisco call., 1896-03-20

the rather winding course of things in the
Fair viii case.
A number OF routine matters took up
the attention of the court during the early
part of the morning session, and it was
after Ii o'clock before Judge Slack was
able to take up the case in which so many
millions are involved. At the invitation
of the court Mr.. Delmas first proceeded to
state his position.
He said in substances:
The matter for discussion this morning is as
to the method of procedure, namely, whether
the will represented here by Messrs. Pierson
and MeEaerney, is entitled to be probated ex
parte, or whether in view of the fact that there
is pending an application and petition for
the probate of q VIII purporting to be OF later
date, the two proceedings must be heard to-
gether and both be disposed of before judg-
ment or order is entered. understand that to
be the condition of the discussion.
The COURT think that is correct. The pro-
ponents of the will of September q insist upon
fHatS that you ol' have AVE tie right OF way.
Mr.. Delmas-There is a petition fled on the
18th of March, 1895, by the three children OF
the decedent asking for the probate of the will
which l shall denominate the will of the oath:
There is also petition filed on the 10Th OF
March, 1895, by Marc Levingston, one OF the
executors named in the will of the Oath. To
the petition of the children asking for the pro-
bate of the will of the Oath contest was flied
son, and to that contest a demurrer has been
interposed by the children, on the ground that
as to Herman Oelrichs Jr. the provisions OF the
will which would give him standing In court,
which is the trust clause, so-called, OF the will
OF the 21st, are null, and therefore he takes
nothing, and has no standing to contest the
viii of the 24th. To the petition OF Marc Lev
ingston a contest has been fnterposed by the
same minors, and to that contest an answer
has been fled Certain other parties, legatees
represented by Mr.. Percy, have also filed q con-
test to the petition or to the Will presented by
the petition of Marc Levingston, and to that
contest a demurrer has been interposed, which
demurrer has been sustained and time given
to amend The time to amend, or flle an
amended contest or take such other action as
may be deemed proper, has been e4tenoeo, as
understand, and expires to-day.
Your Honor has stated in the remarks which
were made here. as reported to me, this whole
matter very succinctly-placed that whole cues
these notes where your Honor is reported to
have said: at may be necessary, after all, to
proceed with the viii OF the 24th, and II that
is sustained of course the Will OF the 2lst
should not be admitted TO probate. On the
other hand If the will OF the oath is found to
be invalid for the reasons urged in the contest
to that will, then the Will OF the 21st might
have to be taken up for probate"
That, If your Honor please, is exactly the
condition of the law and the rule OF procedure
as we understand 1t. The viii of the 2lst was
presented some time in December, 1894, or in
the beginning of January, 1895. That will
was offered for probate by the four executors
III.
statu quo SO far as taking any steps toward
the probate are concerned until the 18th of
March, when the will of the Oath was offered
for probate by the three children of the dece-
dent. On the 25th of March the probate was
again petitioned for by Marc Levingston,
one of the executors named in that will
Now, not long after that the petitioners
for the probate of the will OF the 21st urged
that will forward and demanded action to be
taken upon it, claiming that they had right
to be heard. they being first in point of time
in rt Tya 70
the petitioners OF the viii OF the Oath, and they
then made motion TO drop the petition and
the proceedings inaugurated thereby for the
probate of the will OF the 21st; and there, as
humbly submit and conceive the first wrong
step was taken in these matters. 1t was not
right to ask to have petition, which was
properly before the court asking for probate of
q will which was claimed to be the last will
to be dropped from the calander, because that
jurisdiction of the Fair estate That
was the fountain of all subsequent power
ana of all subsequent duties to be
discharged by this court. Whoever came in
effer that petition. but came in in answer to
the citation which had been issued to the
whole world, this being proceeding In rem,
IN come forward and either affirmatively ap-
prove of the proceedings sought to be inaugu-
rated by the petition or to oppose 1t; and
whoever came in after that citation presenting
ANYTHING which could show that the facts
stated in that petition were Eot true would
come in response to the summons of the court,
sublnittipg himself to the original JurIsdlc-
ton fnaugurateo ana SET IN motion py the
original petition.
Now, when that petition was filed your
Honor ACQUIRED jurisdiction of the estate OF
the decedent, with power to hear and deter
mine all questions incident to its, administra-
ton, In the first place, was the decedent
really decedent--was James G. Fair dead
You had right to inquire and be informed of
that fact; that was the first step in the line OF
orderly procedure. If you solved that ques-
ton in the affirmative the next question was,
did he die testate intestate You solved
that question one way or the other, and If you
determined that he died testate the next ques-
tion was, not merely, Is this paper which
is now presented his will, but what
is his will :? What is his will Any
body had right to corle in and be heard upon
that inquiry If he left will-which you de-
ternnined by the fact that he died testate-the
next question was, What is his will /? What is
it composed of? 1t might be composed OF one