The San Francisco call., 1896-03-17
Bequest to the Teachers Retire.
ment Fund Declared
Invalid.
IT sAvoRED OF A PERPETUITY
DR.. Marc Levingston's Contest to the
First Will Dismissed by Judge
Slack.

Another step has been taken in the Fair
will litigation and arguments have given
place 20 testimony. Nearly all the attor-
neys in the case were present in Judge
Slack's court yesterday morning, as it was
rumored that he would decide the two de-
murrers which have been pending. They
were entered against the contests of DIR.
Marc Levingston, as an executor OF the
pencil will, and the Board of Teachers
Retirement Fund Com missioners, to the
probate of the stolen WILL
Judge Slack announced from the bench
that he had understood that the attorneys
in the case expected decision yesterday,
and while he had not had time to write an
opinion, he would decide the case from
the bench and give his reasons. He then
proceeded to review the points raised by
the demurrers, and ended by sustaining
them both.
Regarding the demurrer to the contest
of DR.. Marc Levingston. he said the con-
test was entered und er the rule which
gives to those having the right to pro-
pound a will for proba te the right to con-
test any will In oppositio to the one they
offer. The right of any person interested
in an estate to contest, under the general
provisions OF the codes, the court held to
be any person interested in the estate
itself and not one interested only in the
fees. An executor who may PROFOUND
will for contest has not the right of one
interested in an estate, and the power of
an executor to probate the will nominat-
ing him seemed TO the court to be bis
measure OF right to enter contest OF any
other.
So far as the points raised by the second
demurrer, the court said there was no
doubt that the bequest to the Teach
ers' Retirement Fund was void, for it vio-
lated the law forbidding perpetuities, and
that bequest was in the nature of a per-
petuity. The gift was of personal property,
but nevertheless the court held that it
came under the rule and therefore was
void. AS to the point regarding the trus-
tees, the court passed that point by, as
Judge Slack said the decision upon the
former point was sufficient to cover the
case. 1t was therefore ordered that both
demurrers, be sustained and thecontests de-
INJURED to dismissed.
Judge Slack continued to the effect that
he was much impressed with Mr.. Delmas'
argument against the demurrers, and as
consequence he would like to have the two
matters heard together-that is, the pro-
bate of the pencil will and the stolen will.
The sustaining of the demurrers, he said,
did not prevent the contestant Levingston
from submitting the pencil will for probate,
and then it would be possible to try both
cases and accept one will while reject
ing the other.
The proponents of the stolen will then
demanded that it 60 to probate, and Judge
Slack announced that he would allow that
course to be taken if there were no objec-
tions. Mr.. Delmas was sick and was not
present, so no objection came from him.
George Knight, the only other probable
contestant, announced that he would not
object in the name of his client, Charles
Fair. and he would withdraw his contest
to the will, reserving, however. the right
to renew it at any time within the statu-
tory year. He was allowed by the court to
withdraw his contest without prejudice.
Mr.. Pierson then took fat roll of type
written pages from the desk and called
Thomas J. Crothers to the stand. Mr.
Crothers told how he had been appointed
an executor, and how he went to the
County Clerks Office the morning after
Senator Fair died, and with Angus and
Bresse, filed the will for probate. He told
of taking certified copy of the document,
and swore that the one handed to him for
Identification was an exact copy of the
original will He said that Senator Fairs
estate consisted of real estate of the ap-
proximate value of $4,000 900, yielding an
income of about 1926, 600 year, and per-
sonal property to the value of $4,000, 900
more. The total value, he said was APP
proximately S12, 100000.
James S. Angus, another of the execu-
tors, followed Mr.. Crothers to the stand.
He told of the signing of the will. 1t was
about IL o'clock in the morning on Sep
tember D. 1894, that l.. G. Bresse, L. W.
Mclaughlin. George Whittell, William NJ.
Pierson and himself gathered in the office
of Senator Fair, and the Senator asked
Whittell and Mclaughlin to witness his
will. They did SO, and then giving the
will, which he had sealed and marked, to
Bresse. the Senator told him to put it in
his own private safe, and he told the wit
ness to go with Bresse and see that he did
so.
Angus saw the will again on Novembe
o6 1894 He was called into Fairs office,
and was handed a slip with memoran-
dunn of section 1907 of the Civil Code upon
il. Fair asked Angus to read the section,
and then asked him if there had been any
nrovision made in the will regarding pos
sible widow or child of James Fair, the
Senator's deceased son. Fair asked, also,
If there had been any provision made re-
garding possible illegitimate children of
his own. Angus was not certain, and 1t
was deemed advisable to call in Mr.. Pier
con He advised that the question be set
fled by opening the will again, and in the
nreserce of Bresse, Pierson and Angus
Fair opened the will and handed it to
Pierson to read. 1t was found to be all
right.
agreement or declaration of trust which
Fair had ordered him to draw up, and
which set aside $4,000 to be held in trust
bv the executors to probate and uphold
the will. There had been similar decla-
ration of trust made in regard to will
made bv Fair in 1892, but this was revoked
and a new one drawn up to refer to the
will of September q, 1894. This declara-
ton set aside fifty $1,000 bonds of the
Northern California Railroad, the pro-
ceeds of which was to be used as directed
Fair signed this declaration OF trust, and
at Persons suggestion the will, the decla-
ration and the bonds were put together In
an envelope, and with his own hand Fair
wrote on the sealed covers, "Last will OF
James q. Fair"
Continuing, Angus said he frequently
conversed with Fair on the subject OF the
will of September q. Fair said that IN
case of his death Angus was to file MS VIII
for probate at once. If he died after
O'Clock in the afternoon Angus was to be
at the County Clerks office the next morn,
ing. Angus demonstrated, but FAR SAID
he had never cared for sentiment in his
life and he did not see why he should