The San Francisco Call. Newspaper, November 17, 1896, Page 12

2 - b & THE SAN FRANCISCO - CALL, TUESDAY, NOVEMBER 17 DR, MARC LEVINGSTON ENDS ~THE BIG FAIR CONTENTION By a Masterly Strategic Earlier of the Go to Probate. With Only the Administrator’s Fees at Stake Further Liti- gation Was Held Useless. D, M. DELMAS’ SCATHING WORDS Mrs. Craven’s Suits {o Recover Under | the Deeds From Senator Fair Still to Be Pushed. And after years of preparation, the as- sembling of a library of legal documents, | motions, demurrers, and all the rest of it, working npward toward the climax of a spectacular and theatrical trial at court. the gathering together of the forces of both sides, a cloud of witnesses, a panel of | jurors ready for the beginning of the bat- tle, the great Fair will case like a dissolv- ing view passed away inan hour before | Judge Slack yesterday morning. D. M. Delmas of Delmas & Shortridge, on bebalf of Marc Levingston, withdrew his petition for the probate of the famous pencil will, and in stating his reasons | made a scathing arreignment of the chil- dren in the contradictory positions they Lave taken. | And thus ended tne great contest of the | Fair will. Once entered upon the trial would have dragged its slow length | through half a vear, perhaps. It was dis- | missed by this quiet process in less than | an hour, and the Fair will of the 2Istis now fixed and confirmed. This, however, does not by any means dismiss the litigation in which the Fair’ estate has become involved since the Sena- | tor's death. Mrs. Craven still claims the | half million dollars’ worth of property under the deeds alleged to have been | given her by Senator Fair. The suits for recovery of the property will, say her at- torneys, be pushed as vigorously as possi- ble. The hali-dozen cross-suits incident | 1o that claim are also pending. In withdrawing his petition for probate of the pencil will Dr. Levingston, through | his attorneys, Delmas & Shortridge, re- views the changing attitude of the heirs and their attorneys concerning that docu- | ment. The paver, although using no ad- | jectives and merely stating the_ history of their relationships to it out of their own | monuths, still constituted such an arraign- | ment of the other side as caused the little army sitting there at the counsel table visible uneasiness under Delmas’ cold, in- cisive reading. In explanation of why he (Dr. Leving- | ston), the executor of the will, shoula | withdraw his petition instead of going for- | ward with the fight for its probate, he toid the story of bow the heirs had first pro- duced the will, asked for its probate, and | then afterward, one by one, withdrew that petition and, one by one again, ar- rayed themselves in opposition to it, leav- ing him alone 1o present its claim to the court. He held that it wou!d be in bad taste for him to insist upon the probate ot a will which was opposed by all the heirs under that will. The heirs had the millions of the Fair estate to back them in their op- position to him. Success or failure on his part meant a large outlay of money which he did not feel justified in making. For these reasons, while still holding firmly to his belief in the validity of the will, he withdrew his peution for its probate. Incidentally, too, he said that failure to establish the validity of the pencil will would work a hardsbip to Mrs, Nettie R. | Craven, who presented the will, and whose suits to recover under two deeds irom Senator Fair for very valuable prop- erty are now pending. When Delmas ceased reading George Knight immediately asked for judgment | under the withdrawal and for the dismis- | sal of the petition. Judge Slack gave judgment. Garret McEnerney immediately called | for the admission to probate of the will of the 21st—the trust will. Delmas said that he was the only one who had objected to the probate and he would withdraw that objection. Judge Paterson asked for the probate wpon behaif cf the minor children. The will was admitted to probate with- out more ado. Judge Slack called attention to the fact that there were forty jurors who had been summoned and who must be paid. Under a rule of the court this pay must be leviea upon tke pariies withdrawing the snit— he would not allow it to be levied against the estate. Garret McEnerney and others interested for the trustees of the will of the 2Ist seemed disposed to argue against the ap- plication of the rule in this case. Al- though the court would not allow this it ris understood that they and not Dr. Lev- ingston paid the bill. George Knight seemed to think this was dizposing of the big case too easily and . also was fretting under the tone of Del- mas’ statement of withdrawal, for he in- terrupted the proceedings to say to the court: “We stand here ready, your Honor, to demonstrate that this pencil will is a forgery.” *‘The matter is all dis McEnerney. “But if the court wants light on the subject—"" said Knight. “The petition is dismissed,” said the court, quietl ‘‘Are there any bonds re- quired of the executors?” asked the court of McEnerney. “No bonds, posed of,” said was the reply. “The NEW TO-DAY. WILD WithEczema 1 was a sufferer for eight years from Eczema, but DOW am entirely cured. 'The palms of my hands were covered and badly inflamed; little white blisters appeared, then ‘would peel off, leaving a red, smooth surface, which would burn like fire and itch. On the inside of the upper part of my limbs, great red blotches would appear, and a8 #00n as [ became warm, the burning and jteh- ing would begin. Night after night I would lie awake and scratch, and almost go wild. Igota box of CUTICURA, and a bottle of CUTICURA RE- SOLVENT, and after a few applications T noticed the redness and inflammation disappear; before 1 had used one box there was not a sign of Eczema left. 1 can truthfully assert that $2.00 worth of Curicura REMEDIES cured me. JOHN D. PORTE, Pittsburg, Pa. 8PEEDY CURE TREATMENT. — Warm baths with Cu- micuka Souw, gentle applications of Coricuma (oint- ‘ment). and mild doses of CUTICURA RESOLYENT, greatest of humor cures. 80ld throughout the world. Price, Coricura, 5e.; | 2 trust will.obnoxious, by its provisions, to | vinced of its genuineness, and did not rest | Court. | tors. | unexplained, might be either misunderstood | ) Thisjadv was reluctant to have her name dragged made. executed and dated on tember, 1894, which wili Move, He Allows the Two Wills to moneys of the estate will be banked, to be drawn upon your Houor's order, except At the office of Delmas & Shortridge the following statement of the situation was made: The central idea involved in the proceedings to-dav was that it would have been iale for Dr. Levingsion to have insisted upon the pro- bate of this will, the genuineness or which he nas never doubted. Before this will was brought forward tne children of Senator Fair were confronted with them. The pencil wiil was then brought for- ward by them, and at that time, S0 great was their anxiety to have the ‘trust will set asid that before they had seen the pencil will they agreed among themselves to pay to Mrs. Craven half & miliion doilars to settle ail of her claims against the estate, provided the will of which she told them was renuine. After they had seen it they were fully con- their opinion upon a fancied similarity of the writing of the will with that of their father, but submitted it to every expert in handwrit- ing in San Francisce, and to the different bank clerks and business men who were acquainted n Eair's nabits of writing. For months aiterward tiey constantly as- serted its genuineness, and no later than this morning they hoped that the pencil will would be pressed for probate by Dr. Leving- ston. They were not sure that the decision of Judge Slack declaring the trust of the trust will vold would be upheld by the Supreme W, We have learned that it has been stated to- day that an arrangement has been made with the trustees named in that will under which no appesal will be taken from Judge Slack’s de- cision. After that aecision was readered Charles L. Falr, thinking the decision was final and seeing a way by which he might avoid the promised payment to Mrs. Craven, attacked tne pencil will. He has never been fully joined in this attack by his sisters. Their active supvort of the pencil will was not with- arawn until very recently. It has been stated that ihe action of Dr. Lev ingston was ap evidence of compromise on h part with the childrén of Senator Fair. This is absolutely untrue. It has also been stated that his action was prompted by lack of faith in the genuineness of that will, and that it was a precursor of & similar witharawal of Mrs. Craven’s support of the deeds. This is equally untrue. ()F;-osed by all of the heirs and devisees, with the Fair millions at their command, 10 jury, however honest it .may have been, could have found a veraict in favor of Dr. Leving- ston, who would have appeared to be fighting only for the comparatively small fees to which he would be entitled as one of three execu- The expense of the fight would necessa- rily have had to be borne by him, with almost certain defeat at the end of a long and expen- sive fight. More than this, he recognized that, while Mrs. Crayen was not directly interested in the will, & verdict against the will would have been disastrous to her in enorcing her rights under the deeds. He did the only right thing which he could do under all or ‘the circumstances, and with. dr?l\v his petition for the probate of the pencil will. The claims of Mrs. Craven under the deeds will be pressed with the utmost vigor. Following is the whole text of Dr. Lev- ingston’s statement in conjunction with the statement of withdrawal of the pe- tition. In the Superior Courtof the State of Cali- fornia, in and for the City and County of San Francisco. In the matter of the estate of James G. Fair, deceased. { In the matter of the contest of the probate of | the will of said James G. Fair, deceased, bearing date Septemver 24, 1894, and propounded for | probate by Marc Levingston, nsmed therein as | executor. i In taking in this proceeding a step which, 1f | | | | or misconstrued, I deem if proper to state the | reasons which impel me 10 the course which I am about to pursue. I do so with the less] doubt of the propriety of such an explana- | tion, since an executor, from the moment he | eppears in an esiate, is, in a certain sense, a servant of the court and under obl'gation to render it an account of his conduet. It will be my aim toset fortn in this state- | ment how, having originally joined the chil- dren of tHe late Senator Fair in their petition for the probate of his last will, I may now con- sistently follow them in_their withdrawal, without being thereby impliededly held to re- pudiate said will, or iu any manner to sanc- tion or approve the reasons by which they are apparently influenced, i James G. Fair died on the 28th of December, 1894. A few days after his death there was presented here a paper, dated the 21st day of September of the same year, purporting to be | his last will. Accompanying this paper was a petition of the lour persons therein named as executors and trustees, praying torits probate, | This instrument has commonly been known as the trust will. Thet the provisions of this testament were distasteful {0 the children of the deceased is matter of public uotoriety. So outspoken was | their dissatisfaction that it was openly stated that the trust feature of the will was in antag- | onism with the seitled and repeatedly pro- claimed purposes of the deceased; and no con- cealment was made of the grave doubts enter- tained that the will was fraudulent and spu- rious. It was also publicly declared that the will should be con tested. On the 7th of February, 1895, one of the counsel for the children, s reported in the Chronicle of the next day, made the following statement here: We do not allow this will (the trust will) to go to probate without a contest. An opposition will Do e, e eore IWO weeks. OF Al the ex- piration of that time. a contest or an opposi will be filed in this matter. gt On the 2d of March of the same year one of the attorneys for Charles L. Fair, as reported in the Chrouicle of the following day, said in open court: I will state at the outset that It 1s the desire and intent of Charles L. Fair 10 contest the document that was filed in ihis court purporting to be the last will and testament of his father, James Graham Fair. In the Examiner of March 18 one of the at- torneys for the daughters of the decensed made the following statement: There will be no quibbling or trickery about this matter. Instead, a straight and fair contest will be made. * * * 1do not think the trial will be along one. ‘We go into court to-morrow fully pre- pured and shall push affalrs to & quick conclusion. The time necessary in which 10 put in evidence will ot be loug: the argument will be short. W, shall ask for no further delays, nor will deiays be tolerated unless absoiutely necessary. While matters were in this condition and the children were preparing thus 1o atinck the trust will, on the 18th of March, 1895, n new will, written, dated and signed wholiy by the hand of the decensed, was presented here, In bringing it into court one of the attorneys for the daughters, Theresa A. Oelrichs and Virginia Fair, made the following statement: In this matter, shor:ly sfter the death of Senator Fair, reports reaclied the ears of his children that their father had made a hoicgraphe will. These reports were followed up, and in several instances found te come f:om Senator Fair himself. It was learned that he had 101d different persons that he had made a will. He 10ld them that he had written the will himself, and & so hosw he had dis- posed of his property. ~earch was made for this wul, but jus. where v had been depo-ited it was impossible to discover until sn accident al remark Tevealed the fact to the Leirs that it had been lety in the possession of u lady who, I wiil xag, is well, widely «nd most savorably known in this City, into the case on acconnt of the no orlety, and naturally shrank from having her name xnown, but finaily, und on the advice of her counsel that It was her duty to give this will to the children of Senator Fair, &he gave it up. Immediately after Senaior Fair's death. In fact the very next day, » will was filed which this Iady presumed was the Iast will and trstament of Sena- wr Fair, and she paid no more sttention to the wiil in her possession until the will filed here wag stolen from the oflice of the County Clerk. Then, when the papers were full of that sensational eventshe looked at the will In her possession and, to her surprise, {rund that it was dated three days afier the one ‘that Lad been stolen. On the im- rlllle of the moment she stnt the will out of the urisdiction of this court, and it was only afier we discovered that she had it and after she had been advised by her counsei that it was her duty o present 1t to this court that she sent for it Ana handed it (o the heirs, and I will present it to the court this morning his will was written witha eyl swas prifs sott pencil on two This, I Wil add. is a holographic will, executed in the presence of Lwo witnesses, who will be Lrougbt into court at the proper tine. This will was accompanied by a peti its probate, in which it wes stated &'u W for Saia deceased left o last will and testament, the 24th day of Sep' 25¢.; RESOLVENT, S0c. and Porr 2R8Cun! Comr.Sole Pross. Bestom, *CTTE DEvG - How to ‘Cure Eczema,” malled free. dated and signed by the han! of the said G. fair himself, and which Wil has 1otsly Aoes into the possession of your petitioners and they { The names of thé attorness fa heiing the wi D. M. DELMAS, Who Launched Yesterday's Sensation in the Fair 1896, Case. now deliver it 1o this honorable court, which has jurisdiction of the estate of said deceased. The petition contained a prayer that A time and place may be fixed for the hearing of the application * * # thay said will may be admitted to probace as the last will and testament of sald James G. Fair, deceased. This of the three children—C. L. Fair, Theresa Alice Oelrichs und Virginia Fair—and also those of all their atiorneys and counsel. The genuineness of this document was vouched for, not only by the solemn manner in which it was brought into courtand the | formal petition for its probate, but also by many contemporaneous interviews published in the daily press by the chiidren, their friends and their legal advisers. In the Examiner of March 19, 1895, the day after the will was presented to the court, one of the attorneys for the daughters is quoted as having said: The three children have] jolned In & petition for the probate of this will, and (hey sre a unit in their judgment that itis genuine. The girls recoz- nize the Landwriting aud the signature, wnd have 10 hesitancy in declariug it genuine. Falr wrote frequently with pencil. with no end of his hanawriting, and the resem- blance is throughout. 1 he will bears inherent evi- ence of its genuineness, even if the proof of its execution and siening were 1ot so_overwhelming. We have telt right plong tha: a_ later will, writ- ten by the Senacor himself, was in_existence, but we did not know in whose custody it bad beeo left. On the same dsy one of the counsel of Charles | L. Fair made the foliowing statement to a re- porter of the Examiner: Mrs. Craven was upto Sacramento in the inter- est of the Leachers’ pension bili, and she dropped the remark about the legacy 1o the pension fund. 1 sent for her, and after a little sha | told_me the whole story. I then' seny her to Mr. Lioyd, and that is all thers is toit. Mrs. Craven was a great friend of Senator Fair. lived for years at the same hotel with him, aad he was a frequent visitor to her home. He there wrote the will and gave it to her to keep. She realized the importance of the matter. but dreaded the notoriety that would neces arily en- sue. Hence she hesitated to speak of the matter and to deliver the document into our hands. She came by 1t honestly and we finally persuzded her 10 turn it over tn us, which she did on >aturday last, In time for us to present it in court this morn- ing. In THE CALL of the same day, March 19, 1895, anovther interview with one of the attor- neys for the daughters is reported, in the | course of which he said: These photographic coples of the will have been certitied to by County Clerk Curry,who has charge of the original, and every precaution has been taken that notning can occur to prevent the pro- | bate of this will. Mrs. Haskins, the o:her witness 10 the wlil, 18 a very respectabie lady who lives with Mrs.'Craven. In the same paper, TH- CALL of March 19, 1895, one of the attorneys for Charles L. Fair is quoted as having said: The accusation that the will is a forzery is ab- surd, Iis bisiory is a littie peculiar. but no one | should think for'a moment that reputable attor- neys would introduce It into court until they had become thoroughly convinced that it was genuine. ought to have considerasle welghi—Garber, B It & Bishop, Lioyd & Wood, Wilson & Wilscn, and my partner, Mr. Heggerty, and myself, wouid never sanction a forged will. We invesi{zated 1t thoroughly before we became satisfied that It was genuine and we feel confident that It is. In THE CALL of March 20, 18! atiorneys of Charle sald: The will is all right. The late Senator Fair has bcfiln telling all over town that he had made such a will, In the same paper Charles L. Fair himself affirmed the genuineness of the will as follows: I think I ought to know my father's hand- writing, and this talk about the will belng a forgery 1s absurd. On the same day Richard V. Dey, the trus- tee of the children under thelr mother’s will, is repor ted in the same paper 1o have expressed himself as follows: The handwriting of the will fs most assuredly that of the Iate Mr. Fair, and | don't hesitate to proncunce the will genuine in every respec.. I should be familiar with Senacor Fai s handwrit- 10k if anybody is. 1 was his secretary from, lev me see; anyway it was in the '80’s, until 1884 1 undersiood” him thoroughly. We consulted to- gether, dined together, traveled together. There 3 no doubt In'my mind but that the new document expresses the manner In which the late Nenator wished to dispose of his esiate. It was jusc like bim to write this new will. It was his way of doing things. He allowed these execu- tors of the first document filed to think that they hiad everyining their own way, and then he went off and upset the whole watter by writing another wiil. Notning could be more characteristic of the man. In THE CALL of March 21, 1895, one of the tiorneys oi Charles L. Fair vouched for the genuineness of this will in the following lan- guage: I am confident that there 1s 1o other will in ex- istence made later than the one we filec. We are satistied of that, ncd also (hat 1t Is & genuine one, We will introduce some proofs of fts genuineness that will surprise so.ue peop e. We know of all the wills recentiy made by Fair. Goodfeliow hus one dated October 14. 1893, Plerson & Mitchell Lad the one made on September 21, 1894, uud our will s the last and third wili Senator Falr made in the lust year of hus iite. Of course it will be tre plan of th: execulos’ atoruers to cast ali <he elights they can on our will and spread reports of other wills, 80 as Lo make people bel1-ve & will made as ous was i3 100 trifling (o be regarded as genuine. This will, dated September 24, 1894, and commonly called the peucil will, named me as one of its executors. Apsr‘ from my own in- vidual conviction it woud ill have become me to entertain a doubt ol the genuineness of an instrument thus strenuously avoucned and solemniy sponsored, not only by the children but by most eminent and honorable. pracsi- tioners, whose “names,” to qrote the language of one of them, “ought to have considerable weight,” and none of whom, surely, *‘would ever sanction a forged will.” Acting, there- fare, in furtherance of their manifest wishes, I joined in their efforis to have the will pro- bated, filing apetition o that end on the 25ih of March, 1895. So resolved did the children then seem to secure the probate of that will and to remove every obstacle from tbeir path that after nearly two months of reflection one of them, acting for the benefit of all, did on the 7th of May of the same year file a contest of the trust will on the ground that: On, to wit: the 24 h day of September, 1894, an 1 three days subsequent to the date upon which swid alle; last will and testament dated September 21, 1894, purports to have been executed, the said James Grabam Fair, deceased, made snd exe- cuted his last wili and tes.ament, wherein and whereby he revoked all prior wills by him made: thal the said last will and tesiament su executed b~ raid James Grzham Fair, deceased, on thie ¥4'h day of Sep:ember. 1894, was and is entirely writ- ten. dated and signed by the hand of the said James Graham Fair. : The will was further contested on the ground’ that its provisions, in so far as they relate toa trust, had been procured by fraud end undue , one of the L. Fair isreported to have was entireiy written, 1y come etition bore the autograph signatures | We have compared this | influence, and on that subject the contestant alleged: That for along time prior 10 the making and execution of sald alleged last will and tesiament, divers designing persons. who possessed the trust and confidence of said Gecezsed. had the desire and intent 10 influence and induce the aforesald Jumes Graham Fair. deceased, to make a last il and testament in‘such forni that the estate of | | said James Graham Fair, deceused, should, after his euth, be placed In trust for n jong period of time, and that the provisions of said will ~should be so arraged that very large profits, remunerations ana benefits should accrue therefrom and thereunder to them; | that thereatier and pursuant o tueir aforesald d sign ana Intent, the said par jes combined, con. | spired and contederated toguther for the purpose of | | influencing and compeliing said James Graham Fair, contrary to his own wishes and will, buz pur- huant (o their wishes and will, 10 make and execute alast will and testament wherein and whereby they would be benefited as aforesaid. And to thac end | said conspirators continuaily urged and pressed | upon the said Jumes Graham Fair, deceased, that he make o wiil containing the Identical provisions alle-ed to be contained In tne adeged will, dated | September 21, 1884, which are herelnabove set forth, and herein and hereby contested. reason of ihe w +s of mind and n Fair, deceased, and of his suscepiibility to prejudice snd th+ in- fluence of those about bim, und by 1eason of the confidentinl relations exisling between the said d and the said conspirators, ana by reason | of the aforesaid misrepresentations of said con- | spira ors, the said Jumes Graham Fair was {n- | @uced and persuaded against his true wishes and | desires, but pursuant to the wishes and desires of pirators, to ke, execute and insert in | the alleged last will and testamen', dated Septem- | ber 21, 1894 (if, in fact, he ever made or executed | suld fustrument) each and alf of the parts ther-ot | nereinabove set forth and here.n and hereby con- tested. The petitioner concluded by praying: That sald alleged will, dated September 21 1594, be denfed probate; * * * that che special s sues invelved In said proceeding be submitted o a jury,and your peiitioner Lereby requests and demands a jury trial of the issues 1uvolved in tuls Pproceeding. The significance and cogency of this docu- ment as evidence of the conviction then en- tertained by the children that the pencil will was the lust will of their father, aud that the trust will was not, is manifest from the fact that it was signed by the attorneys and cong- | sel of all the children, and the jurther fact | that upon s confidence in his ubility sue- | cessfully to maintain «hat contest—that is, o prove the trust will fraudulent and void—the contestant staked all he was given by that will. That ijustrument, it ‘may be remem- | bered, coutains a provision that any one con- | testing it should forfeit ail rights under it. Charles L. Fair affronted the perils of this for- | | fetture in full confidence of his ability to prove that will not to be the will of his tather. On the day preceding this contest one of his attorneys, a8 quoted in the CALL of May 7, 1895, had made the foliowing statement: Will w e contest the probation of the will of Sep- tember 21 before that of the 24th? Ycu bet we wiii * * * on all lines We will fight them all along the line from stsrt to fiuish and will win our case yet. We will begin onr fight to-morrow in earnest. and we will give the others ail they | want before we are through with them. * * * | | We wilt put in our contest to-day and we will show | | that the lutter will s the one tiat should be pro- | bated first, it we are permitted. In the same connection the remarks of one of the sttorneys of the daughters, made in open court on the day after the filing of this | contest, may be here recalled. There was then pending in court a discussion as 10 the appointment of « guardian for young Herman Ucirmhl. The court had appointed to that position Judge Van R. Paterson. This ap- pointment was strenuounsly opposed by one of the attorneys of the caild’s mother, who in- sisted that the father, erman Oelrichs, was the proper guardian, saying: It is monstrous thata high-minded, honorable gentleman shoud have his child taken from him uua put in the hanas of a stranger. . To this, Judge Van R. Paterson had replied, in substance, that, if Mr. Oclrichs would con- test the pencil will, thers weuld be no op- position to his being appeointed the guardian ot his own child: 11 Mr. Qelrichs had done what I concelve to be his duty, if he.hed fied a contest of the pencil will, I would ot Interfere with tne mauagement of his son. * % * [ think Mr. Oelrichs ought (0 have brought this contest, and, {f he had done so, I would not be here asking to be allowed to make it I have subpenaed Air. Oelrichs to_come here snd sta.e whether he meant to make & contest of the pencil will, but as he had 10 g0 10 New York on business 1 agreed to take the admission of counsel in the matter. To this invitation to define his and his clients’ attitude in relation to the pencil will, the mother’s attorney replied: The will of *eptember 24 was submitted to Mrs. Oelrichs, 10 ber si-ter and to all Interested, ana they all concurred that it was in Mr. Fair's writing and is his will. Believing that, as Mr. Oelrichs does, he does not belleve it is his duty to contest the will. e has exan fned the surrounding and does not believe 1% necessary to flle a contest. . The court thereupon ordered the statement of the attorney to be incorporated as part of the evidence 10 the case, and there it remains to this day. Thus did the attorney of Mrs, Oelrichs con- | sent thet her child’s guardianship snould be awerded 10 & stranger rather than that she or he should, for a moment, appear to call in | doubt the Eeuulueness of the pencil will. Puausing here 10 cast a_backward look upon the hisiory of these proceedings, it appears that, up to'this point, the children were in ac- cord upon three things—first, that the estate maust be freed from any trust; secondly, that the pencil will was genuine, beyond cavil, and Mre. Craven, who produced if, “a lady widely and favorabiy known in this'cily,” *a great friend of Senator Fair,” and “Mrs. Haskins, the other witness to the will, a very respecta- bie laay”; thirdly, that the trustees and execu- tors numed in the trust will were “designing persors” and “‘conspirators,” who, havin, ‘combinzd and confederated together,” ha imposed upon the testator in order the more safely to plunder his estate. v How these convictions eame to undergo a change, and why these parties were subse- auentiy brought o denounce the peneil will Asspurious, to arraign Mrs. Craven as a forger | torney had states and Mrs. Huaskius as a perjurer. and 10 look upon the ebove mentioned ‘‘desizning per- sons” and “conspirators” worthy men, to Wwhom they were eager to confide the adminis- ‘ration ot their estate, the facts now to be stated will show. About six weeks after the filing of the con- test of the irust will, and, on the 15th of June, 1895, an action was instituted in the interest of the children to have declared the trust leature of that will void. The executors and trustees having in their answer sct up and relied upon the trust will, Charles L. Fair signed and swore to an afidayit fln Which he set forth on hisoath that he dia daeny the genuiveness ot the said alleged will of September 21, 1894"—the trust will. h.um & lapse of scven months, this court, on ‘tn«:g.d&{lf:ar&ny. (1896 nlcld that the irust vill, 50 far at real catate, was youd. . oo 1 sffected On the 16th of the following month Charles o ——eeeeeeeeeeeeeeee ch]ldren Cry for Pitcher's Castoria. L. Fair withdrew his contest to the trust will, and he and his sisiers consented that that will ouid be granted probate. What, it may a0t be improper here to ask, were the motives which prompted this cou- sent? Why were Charles L. Fair and nis sis- ters willing that an instrument which he had under oath denounced as spurious shouid be held to be the will and that the pencil will, which they bad all so ofien and so solemn!y proclaimea genuine, should be held to be not the will of their father?. Why did he and they agree that a testament should be decreed by the court to be valid and honest which he had himself under oath denied the genuineness of and had charged to be iraudulent and pro- cured to be executed only “by reason of the weakness of mind and body of the sald James Graham Fair, deceased, and of his susceptibil- 11y to prejudice and the influence and arttices of thosg aoout him, and by reason of the confi- denuial relations existing between the said de- ceased and the sald conspirators. and by rea- son of the aforesaid misrepresentations of said conspirators 2" Why did he and they consent that the exe- cutors therein named should administer upon the estate, when he had, in his contest of this very will, characterized them as ‘designing Tsons” and ‘conspirators,” who had *con- ederated together for the purpose of influenc- ing and compelling the said Jemes Grabam Falr, contrary to his own wishes and will, but pursuant to their wishes and will, to make and execute a last will and testament wherein and Wwhereby they would be benefited,” and *very large profits, remunerations and benefits should accrue therefrom and thereunder to them”? 18 it to be helieved that the pencil will had been brought forward merely as an insiru- mentality to rid the estate of the trust con- 1ained in the trust wtll; that, if the heirs were unsuceessful in otherwise accomplishing that objact, then, the pencil will was to be pro- Bated; but, if tue trust could otherwise b got Tid of, then the pencil will, regardiess of its merits, was 10 be cast aside and some out- standing and possibly onerous obligations in- cident o its probate thereby avoided? Upon this subject it is proper to recall the utterances of one of the heirs’ legal advisers, made immediately after the rendition of the court’s opinion. One of the attorneys for Charles L. Fair, on the very day the decision was renacred, had irg‘r’hu reported in THE CALL of February 4, We shall now proceed to probate the will with- Out the trust clause, and if it shall be admitted to provate the estate will be disiributed direct.y to the chlldren. The carrying out of this purpose—the pro- bating of "the trust will without the trust clause—would, it might seem, be open to the objection, among others, of turning over the administration of the estate to the designing persons and _conspirators, who, the heirs had charged, had confederated for the purpose of practicing a fraud upon their father in order 1o despoil his estate. Itis natural 10 assume that some method had been found ot mitigat- ing the heirs' original antagonism to these men. This assumption might perhaps receive light from the fact that on the 5th of Juue, 1896, just ten days before the commencement of the action Lo atiack the trust clause of the trust will, the atiorneys for Charl Theresa A. Oelrichs and Virginia Fair signed astipulation that the specizl administrators of the estate—the identical “designing per- sons” and “counspirators,” who, they had solemuly averred, had “confederated” for the purpose of looting the estate—should ‘‘draw $25,000 each as against th ‘I'wo of the executors and sp:cial administra- tors—one-haif of the whole number, for there were but four in all—had for years been clerks of the decensed, receiving clerks’ salaries. They had serve as special administrators for five months (from January to June, 1895), and the heirs agreed that they should receive therefor $25,000 each. These facts might perhaps at another time call for comment. On the present oceasion their only value is to show that the change of the children’s attitude toward the pencil will, taking place under the clrcumstances stated, ~ught not justly to exercise a controlling in- fluence upon my mind s regards the question of its genuineness. The hope, however, of securing the pro- | bating of the trust will was frustrated by the decision of this court, made on the 19th day of March, 1896, to the effect that thé petition for the probate of the peucil will was entitied to precedence, and should be set for hearing on the 27th of thesame month. The pencil will being thus egain proushtio the front, once more received, for a time at least, the favorabie consideration of all parties in inter- est. On the 234d of the same month one of the counsel for the children said in_an interview with a reporter of THE CALL, published in tha next morning’s issue of that paper, ““that he believed toe pencil will to be genuine, and had said so repeatedly.” This view, however, would seem not to have long prevailed, for on the 5th of April, one ot the attorneys for Charles L. Fair made, in an interview published in the Examiner of the next day, the following statement: We are fighting it (the pencil will) because we claim it is a forgery. Being a forged” instrument, we care not what it contains. And in an interview of the 31 of April, pub- lisned in the Keportof that aay, the same at- 1 have been opposed to the penclled will from the beginning, and lutend to fight it. In justification of my declination to follow the varying opinions of the children and their legal advisers douching the genuineness of the pencil will, it may | not be without interest to note here, in passing, that the author of this utteranceis the same gentleman who, on the 16th of Marclr of the preceding year, had said that the “accusation that the will is a forgery is | absurd,” and “‘my partner, * * * and myself would never sanctiou a forged will. We inves- tigated it thoroughly before we became satis- fied that it was genuine and we feel confident 1t1s”; and, on the 20th of the same month, had said: “I am contident there is no other will in existence made later than the one we filed. We are satisfied of that and also that it isagenuine one. We wiilintroduce some proofs of its genuinene:s that will surprise syme peo- ple”’; und, aslate s the 6th of Muy had said: ““Wiil we contest the probation of the will of September 21 before that of .the 24th? You betwe will® * * ouall lines. We will fight them all along the line from start to finish and will win our case yet. We will begin our fight to-morrow in earnest and we will give toe others all they want before we are through with them. * *°* We will pus in our con- test to day and we will show that the later wiliisthe one thatshoutd be probated first.” Two days afier this repudiation Charles L. Fair filed over his own signature and that of his attorneys & contest ol the pencil will, de- nying its genuineness. This is the same gen- tieman who on the 19th of March, 1895, had 1 think I ought to know my father's handwriting, and this talk about the will (the pencil will) being a forgery 1s absurd.” This contest was filed within a few days after it had been publicly stated by the press that Mrs. Craveu had deeds to valuable prop- erty from Senator Fair and also n marriage contract. Afler the urgingof endlessdilatory pleas, the argument of wnich covered a period of five months, the two daughters of the deceased at lengtn, on the 10th of September, 1896, filed their enswer 0 the opposition of Judge Pater- son. This answer was signed by all their at- torieys and counsel. In it they aver that they ““have no information or belief upon the L. Fair, | ir commissions.” | subjeet of the genuineness of the peneil will.”” Thney deny, however, that that will is not gen- uine and insist that it be granied probate. So eager did they then seem to have the pencil will probated that, accompanying their an- swer, was a notige given by them that they wouid move the court at once for an order set- ting the cause for immediate irial. 1t may be noted here that these ladies had, on the 18th of March, 1895, in a pleading signed by their own hand and countersigned by their same nttorneys and counsel, posi- tively affirmed the genuiueness of this same will and prayed the court to admit it to pro- bate. By whatlapse of memory the informe- tion which they possessed on the 18th of | Marel, 1895, and which enabled them then to affirm 'positively that the pencil wiil was geuuine and in the most solemn manner to pray the court to grantit probate, had been “xpunged from their minds, so as to make it possible for .them to state 10 the same court, eighteen months later, that they had no info mation and did not entertaln even'so much as & belief on the subject, is & problem which the record contained then no sufficient data sati: factorily to solve. Neither did it, then, vel clearly appear why they were stll urging for probaie a document about the genuineness of which they themselves disclaimed all infor- mation and belief. Nor could it, then, be readily conceived why they still persisted in remainiig parties 10 the petition filed by them on the 18th of March, 1895, in which | they positivety averred that will to be genuine, when they had just filed an answer to the contest of the same will, in which they averred that they bad neither information nor belief upon the subject. The coniradictoriness—to use no stronger term—of their petition became so manifest that on the 13th of September, 1896, they witndrew their petition for the probate of the pencil will, leaving on record, however, their answer to the contest of the testator’s grand- { son. This new move left them on the record as ostensible adversaries of the contestants of the pencil will—in other words, ranged them in the contest of the will on the same side as myself and opposed to their brother, the testa- tor's grandson. In reality, however, it is menifest that they were acting in conjunction with their ostensible antagonists and, while apparently opposed, were, in truth, seeking to nocomplish the samb end. if any doubt could have been entertained upon the subject it would have been dispelied by the remarks of one of their attorneys made upon the taking of their deposition. and reiterated here in open court on the 6th of last moath, that they were opposed to the probate of that will. At length, under the pressure of & :notion to strike out their pleading on the ground that it was fraudulent and flod in collusion witn the other side they, on the 31st of the same month, withdrew their answer. By this withdrawal I am left upon the record the sole supporter of the pencil will. | Having now fully stated the circumstances attending the production of the pencil will, its early espousal and ultimate desertion by the children of the decedent, the question arises, what is it my duty to do ? Lest the step which 1 am about to take should be construed into an approval of the course pursued by the children, or into a re- flection upon the pencii will, I desire to state again that I have not now and never have had any doubt as to the genuineness of that ‘will. No reason has been shown why the eonclusion arrived at by me, when 1 filed my petition, on the 25th of March of last year—a conclusion | then in eccord with the nnanimous opinion of the three children and of all their legal ad- visers—should be cbanged. That,under the circumstances, and for the reasons stated, they nave changed, is surely no reason. I know of no rule, either in morels or in law, which reqnires that I follow them in_the various deviations of the courses they have pursued. I was convinced the will was genu- ine then, and in that conviction I still abide Should 1, however. coniinue to urge prayer of my petition and participate in ending the contest made against it? Opposed to this course #ppear many reasons of expediency and propriety both. 1cannot conceive it my duty to thrust upon the aescendents of the deceased a will which they all unite in opposing, simply because I | caunot agree with them upon these grounds of | opposition. Upon this subject they should be | entitled io exercise their own wishes. As long as any of them desired the will probated it was manifestly proper thatan executor named therein should co-operate o sccomplish the desired end. But, for tite seme reason, it | would seem hardly consistent with propriety | | or delieacy for him to oppose them when they | | resolve to abandon their former position. A will is but an offer of the testator to bestow | his bounty upon those he has selected and | named. He may make the offer—he cannot | compel its aceeptance. { 1f all parties interested under the will | choose to decline it and refuse to present it there is no power to probate it, for without a etition there can be 1o probate, and except bre person interestea under the will there can be no petition. In view of the combined opposition of all the legatees under it still to persevere in the attempt to probate this will would reduce jtself to an effort to secure thereby the emoluments which may be inci- dent 10 1ts executorship. To maiea contest for that end alone would piace me in & position both odious and undesirable—one which I do not think it incumbent upon me 10 occupy. There is one further consideration which should not, i candor, be overlooked. The | cost and expense of torcing the probate of the | will in the face of the opposition arrayed against it would necessarily be not inconsid- erabe. Icanseeno reason why Ishould ex- pend any money of mine to probate a will for others. The fuuds of the estete are not under my control, but under that of the adversaries of the pencil will, The attorneys of the chil- | dren and the administrators have lately ugreed that $10,000 be paid to Jndge Van R. | Paterson for the purpose of waging this con- test. I have not the ability to make any sim- iiar disbursement. The fees of witnesses, ex- | perts, reporters and juries may be a trifle to | those who have millions at iheir command, | but wounld operate &s & severe tax upon my slenderer means. A contest carried on under such disad- vantages might result in undeserved defeat, and dereat might tend inferentialiy to reflect upon the validity of certain deeds which Mrs. Craven, “a lady weli, widely and most favo ably known_in_ this City’” and “a great friend of Senator Fair,” holds to valuable property, and which she asserts were given her by the Senator at the very time of the execution of the pencil will. In fairness to the lady, a con- troversy which so closely affects her rights should be carried on directly by herself and not indirectly by me. Upona review of all the facts, I am impelled to the conciusion that, as duty required that 1 follow the exampie of the children when they petitioned for the probate of this will, I should follow it now wlien they retire. Therefore I hereby formally withdraw and dismiss the petition filed by me on the 25th of March, 1895, praying for the probate of the last will and testament of James G. F dated September 24, 1894. MARC LEVINGSTON, Petitioner. J. D. Sullivan, Lansiug & Mizner, Herbert Choynski, Attorneys for Petitioner. W. W. Foote, Delmas & Shortridge, Denson & De Haven of Counsel. 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