The San Francisco call., 1909-10-12
DUNE DEALS
: WITH GIFTS IN
SPRECKELS WILL
Beneficiaries, He Says, Could
Not Receive Property During
Widows Lifetime
Quotes Decision in Fair Case
in His Attack Upon
Document

Peter F. Dunno, attorney for the
contestants in the Claus Spreckels will
case, now being argued before Su-
perior Judge Coffey. spent two ses-
sions of court yesterday in celebrating
upon the line Of attack he had already
outlined against the trust clause OF
the disputed document, citing a mass
Of authorities in substantiation of his
logical analysis Of the wording of the
viii.
The principal point brought out by
Dunno yesterday was that the gifts of
property TO Rudolph and Gus Spreckels
under the viii could not become oper-
ative during the lifetime of Mrs.
Spreckels. the widow, but were con-
tingent upon the trust which he at
tempted TO create in her favor during
the continuance OF her life. He de-
clared that there could be no gift TO
the benehciaries until there had been
a division of the estate into equal
parts. as provided for under the trust,
and referred TO a large number OF for
mer decisions TO sustain his contention.
DIVISION FIRST
Under the Spreckels will. Dunno de-
clared there was not a single gift Of
his whole estate to his benefciaries
TO subsequently be divided into parts
and distributed among them, but a
gift contingent upon a division to be
first carried out by his trustees. It
would only be through the medium Of
directions to his trustees, Dunno said.
that his intentions concerning the Sc
e-r-f., .,r-Fee FA
tained.
Dunno dwelt at some length upon
the significance of the words, "lega-
cies and devises" and legatees and de-
visees" in the Spreckels- viii, having
previously called attention to their
cOntrasted legal use in relation TO per-
sonal and real property. He compared
the wording of the Spreckels will TO
that Of the Fair win. in the twenty
second paragraph OF which. he de-
clared, these terms were used unGuall-
fiedly. Although the provisions in
favor of the children of Fair were
strictly under trust those children
were termed "legatees and devisees
and their portions of the estate were
referred to as '1egacies and devises.
Such was the Interpretation put upon
the viii by the supreme court in the
face Of an opposing argument me
Spreckels viii was even stronger in
Spreckels clinched his meaning in this
regard by referring TO legacies and de-
vises given TO" the various heirs by
this Will
4 GIFT THROUGH TRUST
The primary gift in the Spreckels
case, asserted Dunno. was through
trust, and the manifest purpose of the
testator was that through the same
instrumentality his substituted gift
s-- ho ~
Of his wife's death before mis- own. The
substituted limitation thus took its
character and complexion from the or
igfnal limitation, which was a trust
Dunno spent some time in a discus
sion Of the Dunphy case, In which VaFi-
Gus remainders were provided for in
the event that they were not willed
bv the benefciaries named. Under
such conditions. he asserted. the fee
in such portion of the estate vested,
subject TO being Invested by this exer-
else Of the power of appointment A
limitation after power of appoint
fnenf is vested remainder, though
liable to be divested through an exer-
else Of the power of appointment, he
decia red He showed in this way the
difference between the Dunphy and
Fair cases and in the inapplicability of
tie doctrine Of one 10 the other In
the former case, he said, the fee re-
SIDED IN lne IeIldlHuet nieH SuDJcSb ~
the power of appointment. while in the
latter II resided in the trustees. In
the Dunphy case there was never an
instant of time in which there reposed
in the trustees any portion Of the fee
which they could have transferred or
conveyed.
ACTIVITY BY TRUSTEES
Dunno summed up his argument by
declaring that there never could be
abolished from the Spreckels viii the
2 absolute showing Of an intention upon
the part of the testator for activity
nv the trustees. He announced that
he would take UP a discussion Wednes-
dav morning of the doctrine of in
severability, which has been an i'm
portant feature of the preceding argu-
nents. There Will be no session Of the
case today.