The San Francisco call., 1896-02-13
TESTING THE FAIR TRUST.
An Effort to Extend Judge
Slack's Recent De.
ciSion.
BABY OELRICHS LEGAL RIGHTS.
Important Points in the Great Will
Case Brought Out on
Demurrer.

The Fair will case bids fair to take up
Judge Slack's spare hours for some time to
come. The array of attorneys and the in
tricacy of the barristerial maneuvers would
seem at times to confuse even the judicial
mind, and on Monday his Honor read off
the notes on his calendar in presence of
the lawyers in order to make sure that he
and they knew "where they were at" He
then appointed yesterday as the time for
the hearing of the demurrer presented by
Charles S. Wheeler attorney for the chill
dren of the late Senator.
Mr.. Wheeler was on hand bright and
early with about half a ton of law books,
and as soon as the proceedings opened
commenced his argument. Ex-Judge Van
R. Paterson, the guardian ad litem of
little Herman Oelrichs, was an interested
listener The Fair children's proposed
demurrer is against the contest which
Baby Oelrichs has entered through his at
torney to the probate of the will of Sep
tember a. the last or the "lead-pencil'
will, as it is called.
An important point is involved in the
contention of Theresa Fair -Oelrichs' first
born. He would be direct beneficiary
under the will of September %, by which
the trust was created. The trust has been,
it is true, set aside SO far as the real prop
erty of the testator goes, but, as this repre-
sents less than third of the entire estate,
| the child's interest is still a very i'm portant
one. The lead-pencil will has no mention
! OF trust, and. In case IL is declared
genuine and allowed to take precedence
over the will of the preceding day, in
which the trust is created, the dead Sena-
| tors grandchild will cease to have any
status in the case as a legatee. His inter
est stands or falls with the trust, which is
still assumed to be valid, so far as the per-
sonal property of his grandfather is con-
cerned. Hence his guardian ad litem
filed an application in the baby litigant's
name protesting against the admission of
the lead-pencil will to probate, and also
against its recognition as valid instru-
ment. To this action OF, the legal sponsor
of Herman Oelrichs Jr. the Fair children
demur.
| Mr.. Wheeler commenced his argument
| by assuming that the trust should be de-
/ clared invalid, not alone as to the realty
but as to the personal property as we'll
! He cited parts of the will of Septembe %
| to prove that Senator Fair. intended that
| the personal property OF his estate should
be used by his executors or trustees to i'm
prove the realty and enhance its value
In this connection he said the inquiry sug-
gested itself whether the trust was or was
not an essential part of tho testator' s
Scheme Tor the dlspoSal or hi property,
and also whether the setting as ide of the
trust, so far as the realty of the estate was
concerned, would or would not be tanta-
mount to a practical setting at naught of
the testator's expressed inten ton, in other
words an actual breaking of the will. He
chara cterized the dispositions of the will
of September "a as fanciful and capricious
IN the extreme, and cited a number OF
eminent authorities in support of his view.
Mr.. Paterson asked for copy of Mr..
Wheeler's argument which was promised
him as soon as it might be Transcribed
from the reporters notes, and he was
given ten Gays in which to file his answer
to the dem urrer.
The demurrer of the Fair children to
Baby Oelrichs' opposition to the probate
| of the "peneil will'' is based upon the sup
position that he has no interest in the
estate whatever. BY Judge Slacks recent
decision he mas no interest in the real
property, but the demurrer alleges that he
has no interest at all, and so his claims
upon the personal property, under the
trust. at once come in question. In other
words, by alleging that he. as beneficiary
under the trust, has no interest whatever,
the questions not passed upon in Judge
Slack's recent decision are at once brought
up.