The San Francisco call., 1909-09-29
DEFENDS TRUST
CLAUSE IN THE
SPRECkELS Will
Charles Cushing Argues on
Three Points in Answer
TO Morrison
Holds That If One Part Is Bad
1t Should Not Invalidate
Whole Document


The Claus Spreckels will case in Judge
cofIey's court. occupied both morning
. and afternoon sessions yesterday in a
continuation of the argument begun
Monday by his brother. o. K. Cushing.
: IN hyresponse to the exhaustive attack
made last week by Attorney A. F. Nor
riso,a on the trust clause of the docu-
.ment.
Charles Cushing covered yesterday
fae principal points which were not
touched upon by the first speaker. but
in regard to which an answer was de-
manded by the forceful presentation of
, Morrison. The summing up of the ar
gun ents in behalf of Rudolph and Gus
;preckels. the proponents. will be made
+" : morning by o. K Gushing. who
win be followed in turn by Peter F.
.Duhne in rebuttal for the contestants.
AS on the preceding day the argu-
nlent yesterday was a defense follow
ing directly along the line of attack
made by Morrison. Charles Cushing
discussed only the salient features of
Morrisons assault which were not
.dwelt upon by his brother He di-
vided his argument roughly into three
parts. each Of which was directed
toward the breaking down of one es-
sential feature of Morrison's showing.
londay the claim was advanced by
O. X Cushing that the inclusion of re-
atty in the trust which Claus Spreck-
els: attempted TO create under his will
would not invalidate the trust clause
for the reason that the realty involved
could be converted into cash and so
treated as personally.
STILL EFFECTIVE
Yesterday the argument was to the
effect that even if the trust were void
as far as the real property was con-
oerned it would still be effective in re-
lation to the personal property of the
estate.
Briefly Cushing contended that even
u the portion of the trust in respect to
4cat property should be declared void
ana an apportfonment of such pronertv
ordered under the regular laws of nro-
hate, the provisions of the will should
sun pc operative in respect to the per-
sonal property trust He based this
contention on section 1917 of the civil
code IN which it is provided that "a
VIII is 10 be construed according 70 tbe
Hlatention of the testator. and where
4ls intention can not have full effect
70 Its .tun extent, IL must have effect
as far as possible"
Gushing put good deal of reliance
and more emphasis on the word
must, declaring that under this sec
tlop the doctrine of severability"
should rule in the Interpretation of the
Will
It is well established rule" he
declared, that courts must sustain Ali
parts OF a viii which are good, sepa-
rating them from the bad and not
throwing down an entire will because
parts Of it are bad. A valid trust
SHOULD not be eliminated because one
invalid part exists. unless the invalid
part is so inseparably interviewer with
II and so essential to it that IT can not
be eliminated without defeating the
intention of the testator. Where tbe
whole intent can not be sustained If
must be sustained so far as possible"
YIELD INsEPARABLE
Mprrison's citation of fne doctrine
upo.a which the Fair case was decided
led Cushing into long argument. The
. rule OF the Fair case is that real and
PefsohaI property trusts combined are
50 inSeparab bly,. intermingled and blend
cd t'2at one can not be invalidated
Wit put the destruction of the
o. + Cushing admitted this rule. but
saserted that ii applied only In the
case Of an intricate trust scheme
~here the provisions for the carrying
out of the trust were tangled and
complicated, and that it should not OH
tam Ia the present case. He cited sew
eral decisions in support of this CLAIM,
laying particular stress upon the
Pichoir case. which was decided later
than the Fair case
The doctrine Of the Fair case as 70
1nterfninghng. he pleaded, applies
c1ly TO case where the trusts arc so
tnseparably interviewer that they 20
not De severed without the total de-
struction of the scheme intended nv
the testator'
The second part OF Cushing's argu-
ment was in response to what he
termed the somewhat novel noint,,
raised by Morrison that the irnplication
plainly to be drawn from Claus Spreck-
els viii was that the latter intended
that the trustees should have poWer
10 convert part or all of the personal
property Of the estate into realty. and
that IL this were done the personal
property would become realty and so
defeat the trust Morrison made This
point upon showing that at the
time the viii was drawn the CITY was
IN ruins and much of the real property
would bring no income 1t was then
naturally Claus Spreckels' intention. he
argued, that portion of the personal
property should be devoted to the inn
provement of the realty
INCOME SUFFICIENT
Cushing advanced the converse of
this proposition II it were true that
the personal property might be con-
Nerted into realty, why was il not also
true that the realty could be converted
into personal property2 He declared
that the net annual income from the
real property of the estate after the
fire was more than s125,0O0, which
would have been sufficient for neces-
sary improvements, or. at least, would
have established a sufficient basis for
loan.
Cushing's final charge was to the ef-
feet that the contestants of the will
had attempted to construe the trust
clause of the will as an unlawful ex-
tension of the term for the suspension
OF alienation, but that such attempt !
vas without merit because it was based |
on a purely technical Interpretation |
Such an unlawful suspension could not |
occur. he said. when there were per-
sons in being by whom an absolute In
terest in possession could be conveyed /