The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-01-19
RIGHTS OF EXECUTORS,
D. NJ. Delmas' Arguments in
Support of the Last Fair
Contests.
CAN PROPOSE AND OPPOSE.
Questions on the Jurisdiction of the
Court-Mr. Pearson Will Answer
on Friday.
CAN PROPOSE AND OPPOSE

For another two hours the demurrers to
the contests of Marc Livingston and the
teachers retirement fund to the probate
OF the stolen will of James G. Fair were
under argument before Judge Slack. Nor
are they yet concluded. for Mr. Pearson
will answer Mr.. Delmas next Friday after
noon.
Mr. Delmas concluded his argument in
support of the contests shortly before II
o'clock. He followed in his address yes
terday morning the line suggested by his
remarks of Friday afternoon, He main
tanned that party not named under a
statute, but being legatee under a tesla
mentary disposition, has right to insist
on the recognition of the will in which he
is named. Such offer of a subsequent will
would amount to a contest of the will al
ready on file, but it would only be by
establishing the genuineness of the W i'll
under which he claimed that such per-
son could gain a standing in court. He
cited case where legatees under the first
codiCil of will were denied inheritance in
| the second codicil, but they were allowed
to enter court and contest the validity of
that part of the will-the second codicil-
which acted against them. If testa-
mentary legatee has a right to probate
that Will which gives him a legacy, he
must have the right to contest any paper
which conflicts with such will.
Continuing, Mr.. Delmas said that sup
pose the will of September 81, 1894, the
stolen will, had been admitted to probate,
and that within year after the will of
! September "a. the pencil will, had been
found, then the parties named in the
| second will would have a right to offer
that will for probate. The right to offer
this second will could not be taken away
by reason of the admittance of the first
! Will, and the very fact of propounding the
first will for probate would amount to a
contest of the probate of the first will.
| The admittance of the first will would be
an adjudication that it was the last will,
and any paper submitted for probate after
the other had been submitted, must
necessarily be a contest of the first, and
its proof would be an adjudication
that the first was not the last
will. Again Mr.. Delmas contended
| that suppose the will of September 81 were
admitted and the next day the will of
September "a was discovered, then it would
be the duty of the executors of the second
Will to present it for probate. But the
first adjudication must stand until set
aside, and the proponents of the second
will must first attack that ad adjudication.
If they cannot urge duress nor unsound-
ness OF mind their rights must of necessity
rest upon the genuineness of the will they
| offer. They have an undoubted right TO
be heard, Mr.. Delmas argued, and their
subsequent rights are dependent upon
proving the genuineness of the will of
September "a. In such q procedure only
can they come before the court. They
| must contest the will of September 81, and
the grounds must be that it was not the
last will and that the one they offer is.
Concluding, Mr.. Delmas said that the
court had jurisdiction over the estate of
James G. Fair, and it had therefore the
power to hear and determine first, whether
he died testate or intestate, and then, If
testate, which or what is his last will, and
If there were twenty applicants, each pre-
senting different will, the court, it was
argued, could hear them all. And these
| proceedings need not be in twenty different
actions, but the whole could be heard at
. once and in the presence of all applicants.
| Any executor named in the will of Septem-
| Der a, 1894, Mr.. Delmas said, has a right
| to put forward that will for probate, since
| 1t revokes ali wills prior to itself, and Incl
! dental to the right 10 probate that will the
executors have the right to oppose any
| will that may be in conflict with the on
| in which he or they ara named