The San Francisco call., 1909-09-30
DfffNDS REQUESTS
IN SPR[CKfLS WILL
Attorney Cushing Argues Tes=
tator Did Not Intend Trust
for Rudolph and Gus
Asks Court to Constrne Docu=
ment in Manner That Pre-
vents an Intestacy


Two new points of discussion were
brought out yesterday by Q. K. Cush-
ing, attorney for Rudolph and Gus
Spreckels, in the course of his clos
ing argument for the proponents in the
Claus Spreckels will case in Judge Cof-
feys court. The attorney for the pro
ponents had confined their energies to
answering the direct line of argument
made by Attorney A. f. Morrison in his
forceful attack on the trust clause OF
the will, but this was concluded by
Charles Gushing Tuesday afternoon and
yesterday the initiative was taken.
Cushing has not finished, and prob
ably will occupy both sessions OF court
today. His two new points, developed
yesterday with a mass of elaborate de-
tail and the citation of long list OF
authorities, were in line with the
earlier argument. He contended first,
that only such an estate could vest in
trustee as would enable. him to ex-
ecute his trust; and, secondly, that
in the will of Claus Spreckels the
intention of the testator was not to
create trust in behalf of Rudolph and
Gus Spreckels, but to devise directly to
them.
In his cycle of logic Cushing re-
turned finally to hrs own starting
point-the argument that above all
things the court must strive in its in
depreciation of the will for such a con-
struction as will bring about testacy
rather than intestacy No construction
should be given the will that would
show it to contain an unwarranted
trust to convey, he declared, unless no
other reasonable construction could be
given to it. The intention sof Claus
Spreckels was not tnat share in his
estate should go to Rudolph and Gus
Spreckels through a trust, he argued,
but by direct devise
Cushing explained at length in open
ing the new phases of argument that
the contentious to be made were based
on mere assumption that the former
arguments of the proponents could not
be sustained and that no admission
was intended that these arguments
were faulty in any particular. He
proposed to show. he said, that the
will contained only two trust pro-
visions, one of which was in favor of
the widow and the other in favor of
the daughter, Mrs. Ferris.
EXTENT OF TRUST ESTATE
a trustee takes only such title to
property as is necessary to the accom-
plishment of a trust, and that in spite
of any words in an instrument that
might be construed to give him a
greater title in the property he said
When the express trust or the pur-
pose for the creation of the trust
ceases, the interest of the trustee
ceases"
Cushing referred to numerous au-
thorities to the effect that a trustee
may have even an estate in fee, If
that is necessary, to accomplish the
purpose of a trust by transfer but
that he takes an estate adequate only
to the execution OF the trust. The ex-
tent and duration of a trustees estate
should be measured by the object of
it's creation, he declared. He said that
il it could be shown that the trust
clause in the Spreckels will vested
estates in the trustees only for the
benefit of the widow and daughter.
the turning over of the estate by the
trustees to their Successors would con-
stitute no part of the execution of the
trust.
There was slight interruption in
the course of Cushing's argument at
a point where he cited as an authority
a decision in the Walker estate case.
Judge Coffey was responsible for the
interruption and brought a general
smile by remarking:
THAT case has been in court for 10
years, Mr.. Cushing, and is young yet
1t was on the calendar of this court
this morning and I put it over for
y
ment might continue"
Cushing sought to make the point
that Claus Spreckels created a trust
simply for the benefit of his widow
and l.ss daughter and not for the bene-
fit of those who were to succeed to the
property eventually. 1t would have
been an absurdity for a trust to be
created under the intention that Ru-
dolph and Gus Spreckels would hold
the property in trust for themselves,
he argued. Hence, he said, the trust
purpose would cease with the execution
| of the trust in behalf of widow and
daughter and nothing would remain
but distribution to take 1T out of the
trustees hands. Why, he asked, should
two men be named as trustees to de-
liver property to themselves?
Cushing will probably finish his ar
gument today and will be answered by
Peter F. Dunno. attorney for John d.
and Adolph Spreckels, the contestants.