The San Francisco call., 1896-03-20

presented that viii or that petition-would he
be entitled 10 be heard without these parties
who claim and have proclaimed here with
some emphasis that that Will is forgery?
Would they not be entitled to be heard upon
that subject, they claiming under will which,
though earlier in point OF time, would be the
last will if the other one was what they de-
clared ii to be-spurious? Beyond all question
that must be So And, as say, it is not possi-
bic that by merely being first in the Clerk S
Office the parties did acquire right of way
over erybody else, and that their proceed
ings must culminate and go to an end,
although they have cited the world to appear
and show cause why their proceeding or their
will should not be probated.
We are contestants here OF the will of the
21st, because in that paper which we filed we
affirmed that this is not the last will, that the
will of the Oath is the last will. We are thus
affirming contradictory propositions, each con-
testing the others position. They are con-
testantS OF our Will. We are contestants of
theirs.
In the report of the estate of Horace Greeley,
where the facts are similar to these, the New
York court stated-contrary to what your
Honor has held here-that the executor has
the right to carry on the contest against the
will; in other words, that the very fact that
the executor of the Will of 1871 had right to
claim that that was the last will, the fact that
he had right to affirm that proposition OF
necessity involved the right to deny that some
other will was the last will because the affirm
alton OF one was necessarily negation of the
other.
The Court suppose, Mr.. Demas. you have
not overlooked the reasoning of the court
there, have you, which is to the effect that the
executor becomes vested with the legal estate,
the testator's personal estate. and therefore
has an interest in the property?
Mr.. Delmas-1s it not so in our State? Does
not the same rule apply here?
The Court have always understood differ
emily.
MI Delmas-The decisions are the other way.
I had supposed that that was the point of dis
tinction, though it was not pointed out in the
argument, nothing was said about that, but l
conJectured, because If this is law, If it is
correctly decided, it must rule the present
case,
The Court-I don't think it is necessary to
argue further upon that particular point.
believe that did state in the oral opinion
given here that if the question were a new
question, if it were not take it, controlled by
authorities in this State the other way, I
should feel disposed to yield to those New
York cases, and allow the executor to file a
formal contest; but not only once, but three
times, has the Supreme Court of this State de-
cided that an interest in the fees of admins
tration do not constitute a sufficient interest.
Now, l may be wrong in my Interpretation of
those cases, but feel bound by them as un-
derstand them.
Honor please, in any manner to question the
correctness OF your Honors conclusion reached
upon the contest. That has been decided, and
L was merely answering your Honor's query
calling my attention to the fact that in that
case the decision was based, to some extent,
upon the proposition that the title to the per-
The Court don't place so much importance
upon that. l think that the mere right. what
ever should hold, if l were not controlled by
the three cases in this State, that the mere
right TO PROFOUND a will gives right to con-
test another will that is on file; but the SUI
preme Court, l take it, has held otherwise and
until they oyerrule these cases must follow
them.
Mr.. Delmas-I am not undertaking to ques-
ton those cases, but merely undertook to
call your attention TO this passage, which is
indeed the one that the case eliminates in:
1.-The executors named in the will of 1871 have
clearly, by statute, an express right to have
that will proved, If they can establish the fact
that it is the last will" Is it not SO here? The
by statute the right, indeed, it is
made his duty 10 PROFOUND that will
for, prooate, to petition for its probate,
and they have right to maintain that will
I continue: .If they can establish the fact
that it is the last WILL Now the right to go
to certain place certainly involves the right
to remove from your path the obstacles that
obstruct your road to that place. If 1 have
right TO go from my front gate to my house
certainly have right 10 remove from the
avenue that leads from the gate to the house
may have placed upon my property. If the
petitioners for the probate of the will of the
24th have right to have that will probated, if
they can establish it to be the last will they
necessarily have the right 70 overthrow eyery
adversary who contends that it is not the last
will, but that something else is the last will.
whether you say that that is a right springing
from the power and duty of petitioning, is a
mere discussion about words of no great i'm
portance.
The executors propounding the will OF the
Oath had right and duty to apply for its pro-
bate. They have right to prove the allega-
tions OF the petition which they have filed for
its probate. One of those petitioning allega-
tions is that that is the last will and that moth.
ing else therefore is the last will. If anybody
steps into the arena and contests and claims
<1,s rx.alaa l. fI,x 1,-%
by become antagonists and. of course, a con-
test, legal contest, that is, legal discussion,
takes place between them, to be waged by
is right.
One more remark and will leave this sub
ject, because / cannot but believe from the re-
marks made by your Honor Oh last Monday
that while not involved in the opinion which
you rendered it had undergone considerable
examination and discussion at your Honor's
hands. Suppose that the will of the 21st had