The San Francisco call., 1905-01-07
LEGAL GIANTS
OPEN BATTLE
Contest to Have Dunsmuir
Will Proceedings Thrown
From Court Is Commenced
BIG FIGHT IN PROSPECT
Attorney Campbell Occupies
Both Sessions of the Court
in Mrs. Hopper's Interests

The scene Of the controversy over the
late Alexander Dunsmuir's millions was
shifted yesterday to Judge Coffey's de-
partment Of the Superior Court, where
the attorneys for Edna Wallace Hopper
and Joan Olive Dunsmuir, the latter
the mother of the deceased, are seeking
to set aside the judgment of the Supe-
rior Court of May 9, 1900, by which
Dunsmuir's will was admitted to pro-
bate and his brother James appointed
as executor. In the array of local and
British Columbian legal talent were J..
c. Campbell, representing Mrs. Hop
per; Sir Charles H. Tupper, e. ". Bod
well and Alexander Heyneman, for Mrs.
Dunsmuir; A. p. Luxton and Andrew
Thorne, for James Dunsmuir as execu-
tor, and Charles s. Wheeler, especially
engaged to represent James Dunsmuir
personally.
If the present proceedings succeed
the way will be opened for an attack
upon the common FORM probate Of
the will in British Columbia, and then
will follow the contest of the step
daughter and aged mother of the mil
lionaire against his disposition Of the
fortune.
Mr.. Campbell opened the proceedings
yesterday by presenting his petition to
set aside the Judgment on the ground
that the court had no jurisdiction Of
the subject matter of the estate or Of
the persons interested. He offered in
evidence an exemplified copy of the will
M ho ~ To NH r
for its admission to probate. Mrs. Hop
per's attorney has three points Of at
tack. First, that there is no limit upon
the time in which the Judgment may be
revoked, because the judgment was
void in the beginning; second, that the
admission of the will to probate in
common form in British Columbia was
not a sufficient record upon which to
base it's admission here without the
usual evidence, and the third, relating
to the jurisdiction of the court in
granting ancillary probate under the
laws of California. The latter question
will be discussed by Mr.. Campbell next
Tuesday morning, to which time the
hearing was adjourned.
On the first point, anticipating the
other side would plead that the pro-
ceedings were barred, Mr. Campbell
contended that as the judgment was
void in the beginning there could be no
limitation on the time within which it
could be revoked. He cited authorities
and gave instances wherein several
years had elapsed before proceedings
of this kind were instituted. He then
temporarily surrendered the floor to
tx~I~ 1~ko I11
explanation to the court of the rules Of
practice in British Columbia, particu-
larly with relation to the common and
solemn forms of probate. He said that
under the former, as in Dunsmuir's 8
case, the will was admitted upon the
affidavit of the executor and the order
could be revoked at any time, while
the solemn form could only be revoked
In case of fraud. He quoted English
law and authorities to show that there
was no time limit for the revocation of
probate proceedings and also to prove
that wills must be probated according
to the laws of the country wherein they
were executed.
Mr.. Campbell, resuming, then dis
cussed the judgment roll Of the British
Columbian court relating to the pro-
bate Of Dunsmuir's will and its rela-
ton to the subsequent proceedings in
the San Francisco court. He declared
the record strange and wonderful, in
that the will had been probated in two
jurisdictions without having been
sworn to by the attesting witnesses
in either court. He compared the pro-
cedure to that Of man lifting himself
over the fence by his own boot straps.
Judge Coyne was not present in court.
being confined to his hotel by illness.