The San Francisco call., 1909-10-01
CUSHING DISCUSSES
WILL OF SPRECkElS
Attorney for Rudolph and Gus
Attempts to Overcome De-
cision in Fair Case
He Argues That Iestator In
tended Direct Devise OF
Estate to Trustees

In pursuing his argument against
the attack made last week by Attorney
4 E Morrison. representing John D
ana AdoIph SpreckeIs. on the trust
clause OF the Claus spreckeIs Will o
x Gushing of counsel for the propo-
Reuts- yesterday enlarged upon the
new points which he brought out
wednesdsy He did not conclude his
address yesterday. bat owing to the
pressure Of other business On the cal
endar in Judge CoTeys court the
case was continued until Monday
Cushing is expected to finish the pres
entatiou OF the case Ia behalf of the
proponents Moudzy. and Peter F.
Dunno VIII take Up the closing argu-
ment for the contestants next Wednes-
day. Tuesday being a court holiday on
account Of the visit Of President Taft
70 the city
Cushing said yesterday that the in
tentfon OF Claus SpreekeIs. as shown
by his VIII. was TO devise equal shares
IN his estate directly TO Rudolph and
Gus SpreckeIs and that this devise be-
came operative at the time OF his death
widow. TO whom d life interest IL the
estate was given
ARGUMENT AGAINST Trust
Quoting the language Of the will in
structing Rudolph and Gus SprecksIs
as trustees TO divide said estate into
three equal parts upon TIE death OF
Mrs SpreckeIs- Cushing argued that
these words did not constitute 4 trust.
but q direction 70 the trustees
There could be no inference that
Claus SpreckeIs intended 4 partition
o. his property upon the death Of MS
widow Cushing declared. unless such
construction could be gffen the phrase
10 divide among NY said children
and IN this respect no such coasCruc-
ton could be given the word divide.
Tne intention OF the testztor was
that Rudolph and Gus SprecleIs
should take an estate in fee fmmsdf-
zteIy upon his death said Cushing. and
the final division Of the property was
merely postponed. he cortended. II or
der 70 let IN the life estate given TO
the widow
FAIR CASE DISCUSSED
Cushing attempted 10 draw 4 dis
tfnction between the SpreckeIs VIII
and the Fair will in the constructfo
Of which decisions we're given practi-
CaIy adverse % the most salient
points of his own contention
IF Claus SpreckeIs had had no wife
or daughter ft IS fueoRceIysbIe that
he would have provided FOR any trust
IN hts viii" Cushing declared The
trusr was for their express benefit. and
had they not existed he undoubtedly
would have made the eventual distrf-
button here intended by direct devise
The uostponement Of this was in
tended solely for the purpose OF let
ting in an intermediate estate for his
Widows benefit Suppose Claus Spreck-
eIs had survived his wife
PLEA FOR DIRECT DEVISE
Under such circumstance the viii
provides for division OF the estate
into three equal parts. But months or
years must have gone by before this
actual division could have been made
Then. unless there was an Immediate
devise the title must have zone
swinging OF somewhere in space
Referring 70 the words Of the VIII
empowering his trustees TO assign
transfer, set over and deliver Cush-
ing insisted that far from implying a
trust 70 convey they should be con
stdered as words of devise. He went
at IsugGb into discussion OF each.
word individually. citing authorities 10
show their legal and generally ac-
cepted meanings and declaring that
= Il were neceszzrE 10 take such AN
advanced positiou~ il could be argued
ttzt these words were IN themselves
words OF direct devise