The San Francisco call., 1909-09-28
MAKESR[P[Y TO
THE ATTACK ON
SPR[Ck[LS WILL
Attorney for Trustees Confines
His Argument to Effort to
Refute but One Point
Contends for Right of Court to
Read Into Document Alleged
Intention of TestatOr

attorney Tor RuuoIpn anu Gus SpieCh-
els, spoke in argument responsive to
- the exhaustive and effective attack
upon the trust clause of Claus Spreek-
els will made last week by Attorney
= 4. r Morrison on behalf OF the con-
testants OF the document. While he
devoted some time to q general dis
cussion of the points raised by Morri
son, Cushing put most OF ms EFFORT
into an argument directed at only one
phase OF the many sides of the contro
Versy presented by Morrison and closed
without touching some of the most
salient points emphasized by the lat
ter
cushing did not, however, finish the
argument for the proponents His
- brother, Charles Cushing, Will continue
today. and ii was stated to the court
Yesterday afternoon that he would dis
cuss features not touched upon yester-
day. but which were so put in issue by
Morrison as TO demand some kind of
an answer. Morrison, in his argument
divided the attack into four distinct
assaults on the validity OF the trust
clause in the will, under any one of
which propositions he urged that fatal
r defects existed. o. X. Cushing at
tempted yesterday TO refute only one
OF these general attacks and confined
his citation Of authorities to those
bearing only upon this single line
SUPPORTS BROAD THEORY
Cushing opened with an argument in
support Of the broad theory that every
construction placed upon a viii should
lean toward making the document ef-
fective rather than void, and that
where the main intention of the testa-
TOR could be read from the general pro-
should rule regardless of minor defects
wherever possible without absolute
violence to established principles of
law. The Interpretation Of every
every clause, he said. should be accom-
pIished with view TO making each in
some respect operative. the cardinal
rule OF Interpretation being to find the
instrument effective and prevent intes-
tacy Every question of doubt and
every ambiguity. he insisted, should be
resolved under this theory.
Cushing quoted A long list Of author
iries 10 support his reliance upon the
principle argued for, at one point
quoting from former decision of
Judge Coney himself. in which TIE
court declared that wills should be
literally construed TO effectuate the
intention of the testator and that it
was the duty Of the court TO search for
q construction by which this could be
accomplished
In order TO carry out an intention
-srresurnably meant by the whole IN
= -s.-.Inent. Gushing argued that the
f.urt might. 10y implication. supply
words to carry out a construction. The
very fact that a will existed, he said.
raised a strong presumption of inten-
ton on the part Of the testator to
leave no interest in his estate to any
person. except those specifically named
in the will and every matter of con-
struction should be subordinated to
that intention.
Cushing deplored what he termed a
too technieaT' Interpretation of the
document in dispute and urged the
court 70 seek every channel Of inter
probation which might uphold the will
instead Of breaking it down. The
whole trend OF the first half of his
argument was an appeal TO the court
10 read into the document a general
intention on the part of its maker as
against any particular expressed in
tentions inconsistent with such an in
depreciation.
THE TRUST CLAUSE
In respect to Morrisons showing
that the attempt Of Claus Spreckels TO
create a trust under the will must fail
!: because OF the illegality Of the mechan-
ism employed. Cushing said:
1T was the evident intention here
81 Claus Spreckels that two sons, Ru-
doIph and Claus Augustus Spreckels.
should take the estate. and the fact
that he intended that they should take
is paramount TO any intention that
they should take by a particular mec-
hanism.'
From this he drew by inference the
theory that even should the trust clause
he declared imperative the distribu-
tion Of the estate should be made as
outlined under the trust provision.
The only point OF Morrison's attack
directly responded TO by Cushing was
the formers contention that the realty
trust sought TO be created under the
viii was void because il would dele
gate to the trustees power to convey
the property. q proposition decided in
the Fair case. Cushing practically as
sented to the proposition that a trustee
can not be given by will power TO par
, tition physical property, but he de-
cIared that the right might exist to
convert realty or other physical prop
erty into cash and then partition it.
ASSUMED AS MANDATORY
From this proposition Cushing ar
gued that as the trustees were given
the power to sell property under the
provisions OF the will. this power
might properly be assumed as a man
datory order to sell in order to effect
2 partition. The partitioning of the
estate was the essential thing. he de-
clared. and il a sale should be legally
necessary in order TO carry out the
partition 2 mandate to sell could be
read into the will by inference. II
would be manifestly improper, he as
serted, to interpret the words ito d.
vide" as referring to a physical divi-
sion. which would invalidate the will
IL some other Interpretation could be
given these words which would sustain
the trust clause.
Those questioning the trust must
show that the words TO divide exclude
any possibility of a SALE he decla red
If Claus A. and Rudolph Spreckels
as trustees. were forced actually to di-
vide the physical property look at the
position IL would put them in. II
would be like forcing your honor to ST,
IN his own case. Selfshness would
urge them to get the best of the divi-
sion for themselves. while duty would
urge them TO give the best of such ma
terial division to their sister. Mrs Fer
ris 1t would put them in a most awk
ward position and il is not to be he
lieved that the testator has deliberately
intended to pat these men into tha,
position.
.-On the other hand, if converted into