The San Francisco call., 1896-04-18
WILL SOON COME
BEFORE COURT.
Fairs Pencil Will All
Ready to Be Pro-
bated.
ISSUES CLEARED AWAY.
An Open Field to Try the Merits
of the Famous Docu-
ment.
FORCED TO TAKE A STAND.
The Litigation Narrowing to the Point
of the Validity of the Later
Instrument.
FORCED TO TAKE A STAND.

uc dll Case 10 kStllHS 0OM IL ~ W1lGl
lawyers call definite issues. Not that the
issues which have already come before the
court are in any way indefinite, but many
of them have had but distant bearing on
the main question as to which of the
two documents proposed for probate was
really the last will of James 6. Fair.
There have been collateral issues enough
to keep forty lawyers busy, all lending a
little mist to befog the main case, and so
it was decided that before the main ques-
tions for the court to pass upon were pre-
sented all these outside matters should be
cleared away. To this end the hours of
Judge Slack's afternoon yesterday were
taken up with demurrers to petitions, to
contests and to applications, and motions
to dismiss, to set aside, to deny and over
rule, to continue, to amend and to strike
out.
There was considerable progress made.
The weakling branches were cleared away
and the gIaver questions were put in shape
for final decision on next Friday. These
main questions include the application
and supplemental application for the pro-
bate of the will of September 2l. 1S94-the
"stolen will" The applications are by the
executors and administrators named in
| that will
This will have to lapse, however, until
the more pressing questions included in
that part OF the litigation surrounding the
pencil will," the will of September "a,
1894, have been determined. These ques-
tions are an application by DR.. Marc Lev
lngston, an executor named In the pencil
WILL" demanding its probate, and an ap-
plicatlon of Mrs. Theresa A. Oelrichs and
Virginia Fair to the same effect. There is
then the contest of Charles Fair to the
pencil will" That is an action which
comes up with the application for probate,
for upon the rise or tall OF this contest de-
pends the existence of the will.
There is another contest pending, how
ever-that of Herman Oelrichs Jr and of
Wesley Crothers, grandnephew of James
G.. Fair. 1t is contended that Herman
Oelrichs Jr. has no interest in the pro-
ceedings and he must, therefore, establish
his right to appear in the matter before
he can fight the pencil will.
The proceedings of yesterday were
opened by ex-Judge Van r. Paterson,
who, on behalf of SIX Lundy heirs, seven
Fair heirs, several more Crothers and
young Herman Oelrichs, filed contest to
the pencil will.
In it the allegations were made that the
will of Septem ber "a, 1884, was not the last
will of James G. Fair; that it had never
been written by him, and if ii had been at
one time valid it was Cancelled by a re-
publication of the will of September q,
| 1894, done upon November 26, 1894. Charles
| Wheeler, who represents Mrs. Oelrichs and
Virginia Fair, demurred to the contest be-
cause it includes number of legatees-
| the Lundys and Thomas Fair-Hho had
| sold their claims against the estate
and so were not interested one way or the
| other.
| There was an argument over this and
| the end was reached in two motions, one
| from Mr.. Wheeler and one from Judge
| Paterson to strike out the names or thlr-
teen-six Lundys and seven Fairs-from
| the contest. Judge Paterson's motion was
| granted and the Fair contestants were re-
duced by that number.
This left as contestants Herman Oelrlchs
Jr. and Wesley Crothers and Charles Far.
| Herman Oelrichs Jr. is contestlng the PEN
| Gil win because the will of September Il,
the "stoien will" is much more profitable
| from his standpoint. Under the trust
| clauses he is legatee, but with them de-
clared invalid, or under the pencil will,
which has no trust clauses at all, he is not
| a legatee.
| The trust clauses were declared invalid in
| so far as they related to the real property,
some time ago, and there Is quite ques-
ton as to whether or not they can be III ade
| to stand as regards the personal property
|
! Charles Fair against the special admins
| traitors, and as it was eminently satisfac'
| factory to both SIDES there has been no one
| to appeal. But little Oelrichs wants to ap
| peal, or his guardian and attorney, Judge
| Paterson, does, for the decision does no
suit him at all. Therefore he has motion
pending before Judge Slack asking that h'
be made party to that suit.
The sense of the court upon the relation
of the trust to the persona. property is be
| ing tested in another way, however
| Whenever little Oerichs, In the person o
| his guardian, makes motion or files al
important paper, Mr.. Wheeler rises ant
objects that he has no interest in the pro
ceedings, for the trust which defined hin
as a legatee has been declared invalid
Judge Paterson maintains the child ha
an interest, for the trust still stands so ia
as the personal property is concerned, ant
SO the question of the relation of the trus
to the personal property is at one
brought up.
when Mr.. Wheeler started to object t
Judge Paterson's motions and conte sts
1t was Judge Paterson's third amende,
contest, and it was decided that the sec
ond. which still remained. should, upol
| Wheeler's motion, be ordered off tn
calendar. Then Wheeler argued tha
Judge Paterson could not file any contes
"
allowed him to do so. The code directs
said he, that contests by minor heirs cal
be brought only by counsel appointed b.
the court for that purpose. Judge Pate1
son had not been appointed with suc1
authority, nor had it been delegated t
him later on, said Mr.. Wheeler. and h
therefore moved to dismiss the contest
This motion was denied by the court Of
the ground that it required the court t
take a partisan stand in the matter.
Then Wheeler came back to little Oel
richs again. He said the child had no in
terest in the case and so could not enter
contest. Paterson rose and answered b.
making quito an admission. He said
Judge Slack's decision already rendered i
the trust clause case should stand. then
was evident that little Oelrichs had indee
no interest, for the application of the trus
to the real and personal property was sue
as to make the falling of it in one par
bring down the other. He said furthe
that the point was one not to be tried by
motion to dismiss but should be tried OF
an issue OF facts.
Judge Paterson declined to go on recor'
as saying anything definite about tn
standing of his client, for he had hope
that Judges Slack's decision would no