The San Francisco call., 1899-10-24

" HE fighting chances Of Mrs. Nettie
r. Craven-Fair for a slice of the
millions of the late Senator Fair
have not only been increased by
~ ruling made yesterday by Superior
Judge Trout, but If his opinion is
good law, questions of probate long since
considered settled viii undoubtedly arise
to torment heirs and make fat fees for
lawyers.
Judge Troutt's ruling was made as part
of the proceeding on Mrs. Craven-Fair's s
petition filed some time ago for a family
allowance of $4,000 a month, pending the
determination of her claim to widow
hood" To this petition the Fair children
Mrs. Herman Oelrichs, Charles Fair and
Mrs. w. K. Vanderbilt Jr.-hled an an
swer, in which they set up that Mrs.
Craven was estopped from claiming heir
ship by the decree of partial distribution
granted in April, 1897, by Superior Judge
Slack, in which the decision was reached
that the next of kin and sole heirs-at
law of the late James G. Fair We're the
three children. To this answer Mrs.
Craven Fairs attorneys-W. w. Foote
Pence & Pence, Judge benson and A.
Ruef-demurred. Arguments ON the de
murrer by Pence & Pence for the petit
TONER ana Charles Heggerty and ". ).
Wood, for respondents, were concluded
last Friday and the demurrer was su-
tanned yesterday by Judge Trout. who
holds that the question of heirship can
only be finally determined either upon
the granting of a final decree of distribu-
ton or by a special proceeding which
cannot be brought within less than a
year after the issuance of letters of ad-
ministration.
"In the first and the second separate
answers set forth in the amended an
swers of the children of decedent to the
petition of Nettie r. Craven-Fair for an
allowance to her as the widow of de-
cedent," says Judge Trout in his opinion,
they claim that the decree Of partial
distribution, made within five months
after the issuance of letters testament
tary on their application, estOps her from
claiming to be the surviving wife of de-
cedent, for the reason that she knew of
such application, and that in said decree
there is a recital that said children are
the sole heirs of decedent.
THE aforesaid contention of decedent's
children is in my opinion, unSound; for
l take the view that on the hearing of
the application for partial distribution
the court had not the, power under the
statute to determine who were all of the
persons entitled by law to share in the
final distribution of decedents estate"
Continuing the court said:
Proceedings for the administration of the
estates of deceased persons and for their
distribution TO those who may be entitled
thereto including the determination of the
heirs Of the decedent, are purely statu-
tory. The Superior Court, while sitting as
court of probate, has only such powers
as are given it by the statute. and such
for the purpose of enabling them to eXer-
else the jurisdiction which is conferred upon
them Although IL is a court of general
Jurisdiction, yet in the exercise of these
powers It's Jurisdiction is limited and spe-
cial and whenever its acts are shown to
have been in excess of the power conferred
upon Il or without the limits of this special
jurisdiction such acts are nugatory and have
no binding effect, even upon those who
have invoked it's authority or submitted to
it's decision. The statute permits the ques-
tion OF heirship and the rights and inter-
ests of all persons to be determined only
upon the final distribution of the estate
(secs 1884 and 1865, c. c. P.) or after the
lapse of one year from the issuance Of
Letters Testamentary. (Sec. 1854, C. c. P.
In re Oxarat rs Cal, 109.)
Mrs Craven and her attorneys were
highly pleased at this quick turn of af-
fairs, as it allows them to proceed at
once to trial to establish her claim of
widowhood, without the necessity Of go
ing to the Supreme Court, as they would
have been compelled to do had the de-
murrer been overruled on this point.
THE effect of Judge Troutt's ruling, ="
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