The San Francisco call., 1909-10-08
Peter F. Dunno Batters Down
Arguments Raised to Sustain
Sugar Kings Testament
Attorney for Contestants Makes
Closing Assault on Provisions
of Noted Document


lessly the bulwarHs raised by Attorneys
o. X and Charles Cushing in their
effort of last week to sustain the docu-
ment Dunno was direct and pointed
in his assault. striking one after an
other the arguments advanced in
behalf OF the proponents and literally
tearing them TO pieces. He depended
most on the power of his own logical
analysis Of the provisions Of the mooted
document, yet every point he made and
every phase Of his argument was ade-
quately substantiated with copious ci
tations OF authorities.
An added interest was attached to
the case yesterday afternoon by the
presence in the courtroom OF Mrs
Emma Ferris. daughter OF the late
Claus SpreckeIs, who reached San
Francisco Wednesday night direct from
London. Mrs. Ferris interests are bound
Up with those of Rudolph and Gus
Spreckels. as she was named with them
in the will as one of the devisees under
the trust which her father attempted to
create. She entered the courtroom with
her brother, Rudolph Spreckels. and
was an interested listener during the
entire afternoon session.
ANALYZES TRUST CLAUSE
Dunno concluded his comparison and
analysis Of the technical words of the
trust clause Of the viii during the
morning session of court He declared
that the presence of both the words
"devises" and "legaciesT in the viii in
dicated the intention Of the testator
that his property should be taken by
devise after the trust provisions were
carried out. He pointed out, also, that
il was the intention Of Claus Spreckels
that the interest given Mrs. Ferris
should consist of the revenue from per-
sonalty alone. and that sufficient per-
sonalty existed in the property to allow
OF this and still leave half million
dollars worth of personally over with
out the necessity of any sale of real
property.
Dunno summed up this portion OF his
argument with the assertion that the
viii itself proved that no equitable
conversion OF property was necessary
.Cr intended by the testator and that
10 sacrifice Of property was TO be con-
der and attenuated doubts" in refer
ence TO the latter's contention that all
doubts should be resolved in favor Of
testacy. declaring that the theory of
the law is that a doubt in reference to
the conversion Of property should not
be resolved in favor Of conversion, but
as opposed TO il. He termed the Fair
case the "lion in Cushing's path, not
10 be bearded by the doctrine Of equi-
table conversion or the doctrine Of mer-
ger and evaporation"
The doctrine of merger received the
same sort of consideration at Dunne's
hands as he had given the subject of
conversion. II could have no applica-
tion 10 an unlawful trust to convey,
he said. and any such attempted appli-
cation was nothing more than legal
fiction. He pointed out that the trust
described in the will was not passive
but q very active trust, under which
the trustees would be forced TO per-
form several duties. including a divid-
ing OF the trust property into equal
parts
ACTIVE" TRUST ALLEGED
Il do not suggest that there would be
fraternal disunion between Gus and
Rudolph in their division of the estate
because I make no references in this
case that are not entirely respectful to
Gus and Rudolph" he declared, but
Mr.. Cushing evidently considered the
possibility Of such thing and that
fact in itself is a strong argument that
this is a very active, and not a passive
trust"
Dunno attacked Cushing's arguments
concerning a trust to convey as being
based absolutely on false promise.
He pointed out that although a trust
10 convey was condemned and made un-
lawful under the California statutes,
this did not hold true in England or
under the laws of many other states.
He then called attention to the fact
that the authorities which Cushing had
relied upon in support OF his claims
had been drawn largely If not entirely
from the jurisdictions in which q trust
10 convey could be legally established.
Under such jurisdictions and under the
English doctrine, he showed that a
trust TO convey vested an immediate
equitable estate in the beneficiary and
an immediate legal estate in the trus-
tee, the former continuing to exist
until displaced by the trust to convey.
In such cases, he affirmed. the will
iself was the direct immediate convey
ance OF the equitable estate to the
beneficiary.
In sharp contrast to this doctrine
was the law Of California. as shown
by Dunno. He pointed out that the
illegality Of the trust to convey had
been positively settled in the McCurdy
Fair and other cases, and that in the
Fair case the argument that the trust
TO convey was a mere incident had
been repudiated by the supreme court
He showed that the present case was
not only a parallel OF the Fair case
in this particular. but went even fur
ther In the direction for a conveyance.
The will amounted, he said, not only
TO a trust TO convey, but specifically
pointed out the time for this convey
ance after a division Of the estate had
been made by the trustees. Cushing's
attacks on the doctrine Of the Fair
case he denounced as mere verbal
efforts to escape the facts; a mere
feeble plea piped out in this court
room"
FAIR CASE is CITED
Dunno answered Cushing's claim
that all doubts should be settled in
favor of testacy with quotation from
the Fair case decision, TO the effect
that the rights of devisees are no
more sacred and have no more claim
lIpon protection than have the rights
of heirs" He also called attention
to the ruling that an estate. created
by will could not be made valid by
construction where an estate created
lv deed would be illegal. He showed
that the words divide" and ''parti-