The San Francisco call., 1908-09-05
JUDGE DISCRFDITS
De YOUNG'S STORY
Testimony of Editor Is ''In-
f1rmed IntrinsicaIly" and
Refused Much Weight
New York Law Journal Prints
Decision of Justice BischOff
in Walter Case

II is not often that the New York Law
journal prints anything funny The
Law Journal is dry and serious pub
lication, but in the issue that has just
reached San Francisco appears some
thing that has started a ripple of
amusement through the lawyers Of
fcers.. the clubs and the studios-the
passionless record of Editor NJ. h de
Young's latest feat in mnenonics.
According to decision of the New
York supreme court, reported in full
on the Law Journals front page, Mr..
de Young has broken his own record at
remembering things that couldn't pos
sibly have happened. His best pre-
vious performance was in a calamity
insurance case in which he testified
sbeut the telephone that was on his
desk at the time of the earthquake of
1S68-which was some years before San
Francisco got its first telephone.
The New York decision is by Jus
ttce Bischoff a jurist as polite as he
is learned. Justice Bischoff would never
use a shorter and uglier word He
treats the curious testimony given by
ponderous solemnity. '1nfirmed in
trinsically. by the circumstances, to
which the witness referred" is about
as courteous a way of saying 1t as
could be contriVed.
SUIT OVER ART BEQUEST
Justice Bischoff's decision determined
the SUIT brought TO determine to what
institution the late Emanuel Walter
referred when he bequeathed his art
collection TO the art museum of the
city of San Francisco" The San Fran
cisco art association and the Golden
Gate park museum both claimed the be-
quest De Young, feeling a parental
responsibility for the park museum,
hurried to New York TO testify in its
behalf and in his zeal bore witness to
conversations which, according to the
courts decision, could never have oc-
CURED. De Young remembered-in-
deed. he remembered too well-that
the late Mr.. Walter had told him how
much he had enjoyed a visit to the
park museum. This would have been
valuable testimony if it had not been
established that Mr.. Walter left San
Francisco before the park museum was
opened.
On further reflection, De Young re-
called that this statement had been
made TO him by Mr.. Waiter during one
Of his return visits" to San Francisco.
This also would have been valuable
fact. for it was established that no re
turn visits" were made by Mr. Walter.
AS final feat De Young transferred
the scene of these imaginary converse
tions to Europe, but this, also. was a
vain shifting Of ground, for the evil
dence showed that the testator had
never heard of the park museum.
JUSTICE BISCH0FFsS REMARKS
The extremely courteous decision of
Justice Bischoff says, in part:
"The testimony of Mr.. de Young,
called as witness for the city of
San Francisco, has been so far in
firmed, intrinsically. by the circum-
stances to which the witness referred
that I cannot give it much weight.
This witness, who had been an active
and indeed the prime mover in estab-
fishing the Golden Gate park mu-
scum testified that he knew the tes-
tator; that in a conversation had with
him relative to the witness collection
OF ivories, Mr.. Walter had said that he
himself had some fine specimens of
ivories which he had picked up, and
that some day he would give them to
your museum
The ivories thus seen by Mr. Walter,
however, were on exhibition at the
rooms of the art association, and the
conversation must have had reference
10 this exhibit, since the testator was
never in San Francisco after Mr.. de
Youngs ivories were placed in the park
museum. Hence, in absence of any
actual proof that Mr.. Walter knew of
the projected park museum, or of Mr.
de Young's connection with it, the
words useds by him would appear to
relate TO the art association rather than
10 the park museum.
TESTIMONY Is EXPLICIT
But, on cross examination, the wit
ness became more explicit and gave
testimony which, If acceptable, would
point directly to an intention on the
part of the testator to benefit the park
museum. This testimony was:
He ttestator) opened the CONVEX
sation by saying: That is fine mu-
scum you have out in the park. 1 en-
Joyed very much visiting it. I see you
have been working at your fad on
ivories. You have a very fine collection
of them" He then remarked: You
have a very fine collection of ivories
IN your own house. So have l." AS
far as I can recollect, he then added:
Il intend some day to give some of
my curios and ivories to your mu-
scum
Now, it was impossible for the tes-
-tstor TO have visited the park museum,
r
was opened And yet the witness testi-
ned that this conversation was had on
one of the testator's return visits to
San Francisco after 1894, visits which,
in fact. were never made.
FORCE TAKEN FROM TESTIMONY
The witness subsequent withdrawal
OF his statement that the place of the
conversation was San Francisco neces-
sarily takes all force from the proof
. that is offered. to show the testator's
knowledge of the park museum and his
collection in its favor; and it appears
from the testimony of Edgar Walter
that at no time during his close asso-
citation with the testator, after the lat
ter's departure from San Francisco and
during all the years devoted to max
ing the collection of paintings, was any
word spoken by Mr.. Walter Indicating
that he knew about the park museum
at ALL"
All of which is 10 say that Mr.. de
Young did his best. but that it was not
good enough. Anyway, he remembered
as hard as he could. 1t was in a good
cause. Who would not. for such a pur-
pose, take the chance OF being in
5rmed intrinsically2"