The herald., 1898-01-17
DOLLY'S LUCK
Status of the Creede Con-
| test in Equity
ODD TERMS OF THE WILL
HEAVY PREMIUM PLACED ON
THE GIRLS UNDoINa
ODD TERMS OF THE WILL
She Will Benefit More Largely by the
Breaking Of the Will Than by
F Having It Sustained

Baby Dorothy Creede, sweetly uncon-
scious of the legal warfare raging
around her head, is in the happy position
Of the sure-thing man who plays tn
game of "heads, win; tails, you lose, y
for she will win fortune either way
perhaps. Her inheritance under the will.
has, it is true, string to it, but Of that
more anon.
The contest over the will of the late
Nicholas c. Creede, inaugurated by the
widow, has practically reached the end
of the first phase of the contest. To-
morrow, when the case is again called
in court, one or two witnesses only will
be examined, and then Mrs. Creede will
rest on this branch of the case.
1t will be remembered that the ultl-
mate issues requiring to be proved by
the contestant were: First-That sht
was the legal wife (widow) of N. c..
Creede; second-That the contract Oh
deed of separation from her husband was
an invalid instrument; third-That the
will was forgery.
1t is to be remembered that in hearing
cases of this kind the court sits, not ir
the technical sense as a court of law, but
as a court of equity, with the judge sit
ting as chancellor, to hear matters Of
fact. True, these facts have to be sub
mitted in accordance with the rules of
evidence, but in equity cases there Is
not the same opportunity for legal hair
splitting that there Is when case is
being decided on points of law.
With this fact in mind, 1t is interesting
in reviewing the fight so far made to
note what the contestant has proved
OF course, during the current week the
defense will put in evidence to contro-
vert the allegations OF the contestants;
but so far she has, by q number of wit
nesses, substantially shown the follow
ing facts:
First-That she was legally married
to the late N. C. Creede, the bonds of
matrimony that united her to previous
husbands having been dissolved by di-
vorce or death.
Second-The agreement of separation
was shown to be enveloped in suspicion,
containing elements of fraud. Section
2235, civil code, reads as follows:
"All transactions between a trustee
and his beneficiary during the existence
of the trust, or while the influence ac-
quired by the trustee remains, by which
he obtains any advantage from his ben
eficiary, are presumed to be entered into
by the latter without sufficient consid-
Grafton and under undue influence"
A contract between husband and
wife, such relations being regarded in
law as of the most confidential charac-
ter, occupy to one another in all engage
ments or transactions respecting prop
erty the relation respectively of trustee
and beneficiary The onus of proof,
therefore, Is thrown upon the proponets
of the will to show that no undue ad-
vantage was taken of Mrs. Creede, in
face of the fact that she surrendered in
terest in an estate conceded to be worth
s150.00o for the utterly inadequate sum
of $4,000.
In cross-eXamination Mr.. Gage, in or
der to negative some contention of con-
testant, submitted checks aggregating
$4,000, which, it appeared, Mrs. Creede
has received during the three years pre-
vious to the separation. 1t was thus
made to appear by the proponents them
presents to his wife until Maggie Kear-
ney appeared upon the scene, and he then
began to dicker with his wife, and finally
forced her to leave with $4,000 or leave
with nothing.
Third 1t was shown that pressure
was brought to bear upon Mrs. Creede
to compel her to leave her home agains1
her will, and accept whatever sum her
husband was inclined to give her.
Fourth-The medical experts showed
that Mrs. Creede suffered at the time of
the separation from weakness of will
by reason of her being a habitual user
of morphine, as, indeed, also was her
husband; and was powerless to resist
the opportunities of her husband. He
was represented by his attorney. while
she had no one to represent to her the
full scope and force of the agreement
which she signed. Illiterate and ignor-
ant as well, she failed to understand the
words of the agreement, much less their
legal effect.
These four lines of proof will have to
be surmounted, reinforced and strength
ened as they are by the section Of the
code that throws the onus of proving the
validity Of such an agreement as the one
under consideration upon the PROMO
nents. For that the consideration given
to the wife was inadequate Is now a mat
ter of common knowledge, for it appears
on the face of the contract.
Looking ahead, and conceding that
the court holds the contract to be inval-
i'd, then Mrs. Creede will be rehabilitated
in her position as bona-fide contestant
of the will of her deceased husband. The
fight over that instrument will be
three cornered affair; first, Mrs. Creede.
who is not mentioned in the document at
all. and, secondly. Dorothy Creede's ma
tural mother, Mrs. Edith Bashford, and.
third, the proponents of the will. The
contest on behalf Of the child is less i'm
portant, for an attack is only made upon
the clause Of the will appointing William
Phifer as trustee Of Creede's adopted
daughter. The status of the several
parties will be better understood by
perusal Of the will itself, the following
being an exact copy:
II, N. c. Creede. being of sound mind
and disposing memory, and not acting un-
der menace, fraud or undue influence of
any person, do make and publish this my
last will and testament, hereby revoking
all former wills made by me.
"First-Having always led an unassum-
Ing life and having no convictions as to
future existence, l desire to be laid away
aecently but quietly, no ceremony or SER
vices to be held over my dead body
"Second-To my sister, Clara Phifer i
give $1,000 and the Tallyho property in Los
Angeles 81, 81. E. -