The San Francisco call., 1909-10-07
f. DUNN['
|SARGUING CASE
CONTESTANTS
Explains Laws Governing Trust
Clauses in Spreckels
Will Trial
Maintains That TestatOr Did
Not Order the Sale of
Real Estate

Peter F. Dunno. attorney for John
the Claus Spreckels will case, now
pending in Judge Cofreys court. be-
gan the closing argument yesterday in
behalf OF the contestants. His sum
ming up OF the case is but little more
than well under way, yet it has already
developed into one of the most thor
ough and exhaustive discussions OF the
law relating TO trusts under will
that has ever been argued in this state.
Though yesterdays argument dealt
almost solely with technical details of
the law, it was far from dry or pedan-
tic. Dunno threw into 1t all the force
of his electrical personality and
sketched his position of attack in a
manner that caught the attention and
appealed to the logical interest of even
the veriest layman. He was forceful,
direct and convincing at all times, and
backed his own opinions and deduc-
tions with mass of legal precedent
that shattered practically every con-
tention advanced last week by the at
torneys for the proponents.
INTENTION OF TESTATOR
The essence OF Dunne's argument
by Attorney o. X. Cushing that the
intention of Claus Spreckels' will was
for a conversion Of the real property
of his estate into personality for the
purpose of making an exact division
among the three children named in the
will. He took up two clauses of the
viii and analyzed the language in
which they were clothed as the best
proof of the actual intention of the
testator, showing, as he progressed,
that an actual sale of the real prop
erty was a thing never intended by
Claus Spreckels.
The wording Of the fifth paragraph
of the will was taken by Dunno as
the first proof in substantiation of the
position he had taken. He quoted
from that paragraph a phrase directly
relating to Rudolph and Gus Spreckels
as trustees in which Claus Spreckels
declared my intent being that they
shall be absolved and discharged from
the absolute legal duty OF converting
my estate into money" This, Dunno
argued was a final answer TO the claim
Of the proponents that Claus Spreckels
intended a distribution OF his estate
only after his realty had been disposed
Of 1t was an express exemption, he
said, which left no doubt as to the
real intention of the testator.
Dunno did not stop, however, with
ing one in which authorization was
given the trustees to sell any or all
personal or real property of the es-
tate 'in their discretion" Even with
these words left out, he insisted, the
paragraph would give only discre-
tionary power of sale and would of
itself constitute the strongest implica-
tion against an imperative command.
By this provision, he argued, the trus-
f@.v hair
to sell or to refrain from selling, ac-
cording to their best honest judgment
as 10 what would be of most benefit
to the estate, and so, in no way, could
the direction be construed as manda-
tory
BLENDING OF PROPERTY
Dunno referred by paraphrase to
Cushing's paternity of the subject OF
interblending- Of funds as an invention
which might return TO plague its in
ventor." The law, he said, did not
favor such a thing as an inference
that real and personal property should
be interbIended unless the direction
for conversion amounted to a direct,
imperative order. He drew distinc-
tion between the case at bar and the
one upon which Cushing relied in his
direction by showing that in the lat
ter a Pennsylvania case, the rule was
laid down because in that jurisdiction
only personally is administered by
the administrator of an estate. He
went further and cited a later Penn
sylvania case in which it was ruled
that the direction to convert realty into
personality could not be inferred and
must depend upon an imperative in
struction. With this in reply to Cush-
ing, he added that the Pennsylvania
rule would not be applicable in Cali
fornia in any event, for the reason
that in this state both realty and per-
sonalty are administered in the same
manner.
Next to be taken up by Dunno was
Cushing's claim that Claus Spreckels'
direction that his estate be divided
among certain heirs inferred a division
of proceeds from the sale of realty
pointed out that the division was to be
into equal parts" and drew a sharp
distinction between a division into
parts" and a division of proceeds
from sale of property"
Suppose Claus Spreckels, before his
death, had called Rudolph and Gus and
Emma to him and asked If they would
be willing TO take an unvidided one
third interest each in the Call building" >"
suggested Dunno. 1T seems to me that
Rudolph would have accepted the
proposition with alacrity. If anybody
should 0ffer me an un0lVloed lnlru IN
terest in such property as the Call
building at a reasonable price, / know
/ wouldn't hesitate to accept it if l
had the money"
You may get the money at the end
of this case, Mr.. Dunno" interrupted
Judge Coffey.
Il wish to thank your honor on be-
half of myself and associates for this
foreshadowing of the judicial result" ,"
returned Dunno amid a general laugh.
NOT DIFFICULT TO DISTRIBUTE
Dunno made clear the fact that with
such an estate as that left by Claus
Spreckels no logical objection could
be waged against division of prop
erty which would include a tenancy in
common of realty. What possible
practical difficulty can there be-" he
asked, in distributing such property
without resorting even to the power
of sale7"
To command a sale, said Dunno,
might be to command sacrifice, while
a discretionary power would apply
only to exigencies which could not be
foreseen by the testator. AS a further
argument on the same general line,
he cited authorities to show that tech
nical words in a will must be con-