Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-03-03
ANSWER IN COTTON WILL CASE
JUSTICE BARNARD'S RESPONSE
TO COURT OF APPEALS RULE.
Joined by Heir of Decedent-De-
tense Of Jurisdiction of District
Supreme Court.

| The answers of Justice Barnard of the
District Supreme Court and of Helen
| Marguerite Beatrice Sacher, the great
grandchild of Mrs. Ellen NJ. Cotton, to
| the rule recently issued by the District
Court of Appeals to show cause why
| writ of prohibition should not issue to
prevent trial next week of the ques-
| ton of the intestacy of Mrs. Cotton. were
| filed today in the appellate court.
| Justice Barnard sustains his jurisdiction
to frame the issue as to whether or not
Mrs. Cotton died intestate. He declares
| he was requested by counsel for the res
| pendent in the presence of counsel for
| the petitioner to hear the application for
| framing the issue and that at no time
was it suggested or intimated by any of
the counsel in the case that he was not
| authorized to hear and determine the
questions submitted to him. He says he
| understood he was acting with the acqui-
essence of counsel and with the express
consent of Justice Gould. who. it is
claimed, is assigned to hold the probate
court.
The answer of the great-grandchld.
who is contesting the will. and at whose
oehest the issue as to lntestacy was
framed after reciting the proceedings in
the Cotton will contest here and in Cal
ifornia, which have been extensively pub
llshed. sets out that there has been no
order passed by the District Supreme
Court holding general term in reference
to the assignment Of the Justices to the
seveal branches of the court since jan
uary 10. 1906. BY that order Justice Stat
ford was assigned to Equity Court No. ..
Justice Barnard to Criminal Court No.
, and Justice Gould to Criminal Court
No. 1. No reference to the assignment
of justice to the Probate Court has
been made in the minutes or the general
term since June .. 1904. when Justice
Stafford was directed to hold that court.
Shortly after the order of January 10.
1906, by which Justice Stafford was as
signed to Equity Court No. and Justice
Gould to Criminal Court No. 1. these two
justices, upon their own motion and pur-
| suant to section 81 of the code. it is al
legged without any general term order,
exchanged courts.
Order of June, 1904.
The order of June, 1904, directed that
jury trials on issues framed in the Pro-
bate Court should be heard by the justice
holding Criminal Court No. ?. Thus, it is
claimed Mr.. Justice Barnard had juris-
diction to pass the order framing the is
sues.
The right to have the question of tes-
tacy or intestacy decided in one trial is
| urged by the respondent. She declares
that Walter ]. Bartnett, who prepared
the will in controversy. testified at the
trial in California that it was his custom
| when he anticipated a controversy over
an estate to prepare a series of wills, to
be offered in rotation in the event the
one of latest date was upset by the ver-
dict of the jury. 1t is claimed that this
is the purpose of the proponents of the
will in this case. and by the issue thus
framed protracted litigation may be
| avoided. Sections of the District code are
cited to sustain the right to have the is
sue framed and tried.
Arguments on the petition of Mrs. Caro-
line Cotton Dahlgren. the principal bene-
ficiary under the WILL for the writ of
prohibition and on the returns filed to-
day were held this afternoon. Attorneys
r. Golden Donaldson. a. s. Worthington'
and B. W.. Parker represented Miss
Sacher. and Attorneys Conrad H. Syme
and Charles A. Douglas appeared for
Mrs. Dahlgren