The San Francisco Call. Newspaper, February 27, 1900, Page 3

THE SAN FRANCISCO CALL, TUESDAY, FEBRUARY 27, 1900 SUPREME COURT REVERSES JUDGE SLACK AND Children Placed in Bad Position by Terms of the Decision. May Reopen Negoti- ations With Mrs. Craven-Fair for the Pencil Will. e OUR Justices of the Supreme Court cided that a trust to ¢ er the termination of liv of testament” a s G. Fair has been | al rety. Accompanied light of despalr e work of lyddite in decision fell like a bomb of the dead mi rday afternoon. Its fall re breath of heirs an r with the word of ten of the the cou ed fre terest Children Surprised. on of affairs entirely unexpect- the late to dictate terms their il Will Aga hick f nc wl n | held the trust created by the will to be invalid, ered Provision. r's Trust personal oever situ- bequeath unto my and to the sur- r guccessors in of- ik uses and pur- me in trust dur- a A. Oel- Charles | surviy survivor to | or descend sa, the one. ty and estate Aants of such PERSONS WHO ARE are nearly always associ- 11 or throbbing, d dark rings under e and coated tor heart, Fig. im- 5; weakness of promptly relieves these symp- HUDYAN give tone and body tissues, assists flation, brings all the ous action. ses of female disorder there is no medy than HUDYAN. HUDYAN those weaknesses and troubles atural to women. kes rich blood, from which trength and flesh. If you heaith and strength. a a rosy cheeks, “take HUD- "HUDYAN is for sale by druggists—30c a ary to law, and | he adjusters of | . dea DECIDES TRUST CLAUSE OF FAIR WILL Do et et et eI edeiteitdesiesiesdeidsdesrdedeidedsriedeieieieieiede Fair Attorneys Get a Document That Disconcerts Them, v brothers and s the provisions ¢ case either o daugh- daughter; and if there be transferred and and sisters and to ased brother or sister during the life or lives of . and the survivor of ge and control the said ate, and monthly to pay derfved therefrom to my < and son in equal proportion of either of my said daugh- | the one- third of said net in- if 1iving. would be e said s n, children or children or de- no children or de- of sald net i { the rest and resid be disposed of as s of this will: and upon th of my said son to pay over the one-third f said net income to which he, if living, would | d to my two said daughters , or to the survivor of them. Claims of the Litigants. The ground upon which the Superior Court the | and which Is herein, section §5 maintained by the respondent it contravenes the provisions of 1 Code, in that it authorizes the trustees, 1 the death of the last surviving child of the testator, to transfer and convey | the trust property to the persons therein desig- nated. The court further held that this trust | was so inseparably connected with the other- | trust to receive the income of the | property and apply the same to the use of the | childre of the testator during their lifetime, that, In view of the legal consequences flowing | from its invalidity, it could not be presumed that the testator intended that the latter trust | should be effective. It therefore held that the | entire trust was invalid and that the testator | had died intestate as to real property described in the complaint. The appellants concede that | a trust created merely for the purpose of con- | g real property to another is unauthorized, m that the provision in the will of Senator Fair that upon the death of his last surviving child the trustees shall transfer and ey the trust estate to the persons therein signated, was not one of the “‘purposes’ for | which he created the trust; that the trust cre- | at by the will is an executed trust; that the rustes e only an estate in the property pur auter vie, which will terminate at the death of the last surviving child; that at the | death of the testator the persons to whom he directed the property to be transferred and conveyed were vested with a remainder in his estate which will vest in Dossession at the h of his last surviving child, and that the | estate which will then be vested In them will | neither require nor admit a_co trustees for the purpose of any interest in the property. Judgment of the Court. It is the opinion of the court, after view- ing the authorities presented, that the will does not suspend the power of allenation for a longer period than during the lives of persons in being at the death of the testator. The fact that a child of either of the testators | h or of either of his brothers or sisters | ventre sa mere at the death of his | ng child, will not have this effect. | be invoked to impair the | 1 It is only the power of | ation which the statute forbids to be sus- pended. and this power Is not suspended by | reason of any difficulty or inconvenience that | may attend its exercise. - The suspension of mation which s aimed at by the statute | is such as is caused by the instrument creat- ing the estate, and mot such as naturally arises from some disability on the part of the person in whom the estate is vested, such as infancy or other incapacity, or from any other cause outside of the instrument. ‘The provision in this section excluding from determination in such action all questions con- cerning the valldity of any devise or trust con- tained in a will or Instrument purporting to be a will, which under the constitution ‘‘be- long exclusively to the probate jurisdiction,’ presents for construction the provision in sec- tion § of article VI of the constitution, by which the Superior Court is given jurisdiction of all matters of probate, and w is cluded under ‘‘matters of probate’’; and to what extent the jurisdiction thus given to the Superior Court i exclusive of the jurisdiction given to it by the same section “in all cases in‘equity.”* These questions have not been dis- cussed by counsel, and, as the conclusion which we have reached in reference to the validity of the trust clause in the will necessitates a reversal of the judgment herein, it is unneces- sary for us to determine whether the provisions of mection 735, as thus amended, were available to the plaintiff for the purpose of maintaining his action. We do not wish to be understood as expressing any opinion upon these point: and allude to the matter only in order that it may not be inferred from our silence thereon that we hold the action to be muthorized by that section. The decree of distribution in the estate of Fair ls reversed. The judgment and order de- nying a new trial in the case of Fair vs. Angus are also reversed. The theory of the Justices dissenting from the above decision is contained in the dissenting opinion written by Justice Garoutte, which follows: I concur generally in the views of Mr. Jus. tice McFarland. careful examination I veyance from the | othing them with be en iy six packages for $2 50. st does not keep HUD- to the HUDYAN REM- Cor. Stockton, Eillis and Mar- , Ban Francisco, Cal. Consuit Free the Hudyan Doctors. Call U, am satisfied 1t will g:“found that a very large majority of the cases ctted by Mr. Justice Har- rison in bis opinion, to the point that the words “‘transfer and convey” should be construed as words of devise, have arisen under . statutes quite Missimilar ‘to-the statutes of this State; and generally in jurisdictions where the prin- clples of law pertaining to ‘“‘powers in trust to convey'’ are recognized and approved. It is | | that James as aforesaid |t la | no_reason why a trust to ‘‘trans | sufficient to say we have no like principles of “powers” in this State. As I read f Mr. Justice Harrison, it goes o the length of holding that a transfer and nce from the trustees to the bene not demanded by the terms of the will eve such contradiction of the instrumen does violence to the meaning and use of the simplest and most ordinary words, If words mean anything, if a party’s intentions are to be determined by his words, it must be held Fair intended that the trustees the title to the beneficiaries by should pass do not _express deed If the words here used then it to the words ‘‘trans- If the words ‘‘transfer and were used in a power of attorney convey there would be no trouble in giving them the usual and ordinary meaning. Why should there be trouble here? In the early stages of the litigation, when the validity of this trust was not a burning question, the trustees them- selves thought that James G. Fair intended to vest them with the title to the property, and 80 construed the will, for by their verified plead: ing they declared the title to be absolut vested in them. This court is not author! to give the will a forced construction, but sim- | ply to give it a natural construction: and when that construcion is given it, let the law take its course, wherever it may lead. It is substantially conceded that a deed to the trustees in trust to ‘‘transfer and convey' at once to the children of Fair or to any other class of beneficiaries would be void as creating trust forbidden by our statute, namely, a trust to convey land. But it is held that a deed to the trustees in trust for the use of Fair's children during their life, and then to “transter and convey”’ to other parties, is valid as not creating a trust to convey. Cer- tainly, to an ordinary mind the soundness of this reasoning is not satisfactory. There is r and con- vey' is, or should be, transformed into a de- vice eo instanti by the mere insertion in the instrument of a clause that the land for a lim- | ited period should be held by the trustees, and the rents and profits during that time applied in other directions. To my mind, as far as this question is concerned, such a clause oper- ates simply as a fixing of the day when the trustees shall make the conveyance to the bene- ficlaries. This case stands exactly as though the trustees under the will were required to apply the proceeds of the lands to the support of Fair's children for the period of twelve months, and thereupon ‘‘transfer and convey’’ those lands to the beneficlaries named. 1t would seem under those circumstances that a trust to convey land was intended to be cre- ated, and tested by the law of this State ex necessitate was created. Opinion of Attorneys. The_attorneys for the children of Sen- ator Falr were in no mood to talk about the decision last night. Charles 8. Wheeler sald that he had made it a rule net to be interviewed and would not talk about the matter in any way. He had no opinion that he would express about what course the Fair children would now take; nor would he say anything about the effect that the decislon would have in entrenching the trustees of the estate for life. Attorney Heggerty talked a little. He took the view that the trustees were | now confirmed in tenure until the Fair children should all be dead, and also sald that Mrs. Craven could hope only to get $50 under the will If she could convince the courts that she. was Fair’s widow. Lafe Pence on the contrary said that the decision would not affect the rights of Mrs. Fair to one-third of the income of the estate and one-third of the real and personal property. She was not a party to the action and was not bound by the judgment. She was free to attack and defeat the trust clause of the will of Sep- tember 21, 1894, and to secure one-third of the estate and of the income, even though the children were bound by the decision. ‘That decision by the Supreme Court would not be followed when the trust clause was attacked by her. She could attack on two grounds. e was that there was an un- lawful accumulation of income, amount. ing to $500,000 per annum, under para- graphs 15 and 22 of the will, which, should any of the children survive 50 years, would, as it comdpounded, result in a for- tune in the hands of the trustees many an greater than the whole value of the predent estate; and sections 723 and 724 of the Civil Code made such accumulations unlawful. Pnrngrt\ph 15 of the will pro- vided that In the event of the death of the ‘two douihten without issue two- thirds of the Income must accumulate in the hands of the trustees until after the death of Charles L. Fair. This might be fifty years hence, and the accumulations at the end of that time would be many millions of dollars greater than the pres- ent total value of the estate. In neither case was the accurhulation limited to the minority of a beneficiary; nor was it pos- sible for the trustees, or the court, to de- termine or name any person to whom the income could be fiald. The collateral kin living to-day might all die before the chil- dren. These points might be presented by the attorneys for Mrs. Fair on a rehear- ing of the case just decided by the Su- preme Court, but Mrs. Fair. was not a gnrty to that litigation and the attorneys ad some hesitation about offering their services as amicus curlae. SENATOR WAS AN INDULGENT HUBBY HE attorneys for Charles L. Fair, the Falr estate and all the other in- terests allled against Mrs. Nettie R. Craven-Fair in her efforts to get a family allowance from the estate of the late Senator Fair had an unhappy time in court yesterday. Some few tl did not go their way, and they .,,,.,{“,,‘,‘,}' ly forced before the court some evidence cannot be_ expressed in | | | they that was decidedly in favor of the woman | who claims to be the late millionaire’s | widow. Without apparently knowing just what | were doing they asked Mrs. Craven- Fair if she had any written evidence of her alleged marriage to Senator Fair. They discovered when it was too late that | both the question and answer were load- ed. Of course she had written evidence, | and her features beamed with satisfac- | tion when she said it. Mr. Pence, her at- torney, keeping it for her. The Fair counsel wanted to know more and they insisted upon the production of the e dence. That was just as easy as Mrs Craven-Fair's answer. Mr. Pence delved | into the depths of his pocket and out came Justice Simpton’s letter to W. W. Foote, dflaxnd August 8, 1599, and the Marin County magistratc’s affidavit, dated four | days later. Pence had been aching to pro- duce it and he nearly jumped out of his chair when the oppofing couns - Zented the opening ¥ © counsel pre Fair Attorneys Disturbed. | Attorney Plerson, who has been con- ments. One nce seemed to convinc him that a mistake had been made some. where. He bit his lips and began a spell of deep thinking. His reverie was dis- turbed by the rush of his assoclates, all | eager to get a glance at Simpton's origi- nal declaration. Each made ;‘mszy mem- oranda of the statements that most in- | terested him. There was a_hurried con- sultation between the Fair forces, the ef- fusions of the Sausalito Justice were handed to the clerk of the court and marked for identification, and the learned lawyers started an entirely new line of in- vestigation. And Lafe Pence smiled, and smiled and smiled Mrs. Craven-Fair was the only witness on the stand during the day. She was a little snappy at times and gave evidence of a burning desire to tell Attorney Plare DeOe 90000006006 006000600Pe0e00d+0ePeded e 2000000000000 46600 ded o . | Widow Scores Several Points Before Judge Troutt. Fair Attorneys Sur- prised by Produc- tion of the Simpton Documents. | { i : @ itk el e e feel e ticular and all the Fair forces in gen- eral, but she managed to restrain herself and her opinion of Pierson was not ex- pressed. 1t would ot take a mind herself very thoroughly understood. Nightshirt Waved Again. The late Senator Fair's silken night robe was waved agaln, but only for a brief moment, not long enough in fact to bring a blush to any one In the court-| room. Senator Fair's manner of treating his alleged wife was a subject in which the | attorneys appeared greatly interested. Ac- cording to Mrs. Craven-Falr the Senator was an ideal hubby. She never had to ask him for money, and he was so par- ticular that she snould be well suppued that he left piles of twenties wherever she was likely to find them. Even before the marriage contract was signed he was Lib- eral with his cash, for he slipped a hand- ful of gold into her pocket one day, with the remark that he thought she might have use for a little spending money. To controvert this testimony the Fair | attorneys claimed that during the time | Mrs. Craven-Fair claims she was so abun- | aantly supplied with funds by the Senator | she was discounting her salary warrants as principal of the Mission Grammar School and otherwise sparring around for ready money. The witness admitted that | this was the fact, but was prepared with a plausible explanation for her actions. he petitioner went on the witness stand B i Pine and Sa southwest corner of nsome tion. i she said; “He did everything for me that a hus- band possibly could. He left money for me everywhere about my house, generally $200 or $300 at a time. Once he sent me a ackage of greenbacks to the Mission rammar School by the janitor. 1 had sent a message to the Senator, and when the janitor returned with the reply he He Was an Ideal Hubby. | i{:r»h_ | oL e A D e et | That after the performance of said ceremony both part anything STATEMENT MADE TO W. W. FOOTE BY MARIN COUNTY MAGISTRATE SAUSALITO, Cal.,, Aug. 8, 1899. . W. W. FOOTE, San Francisco, Cal.—Dear St At the request irs. Nettie R. Craven-Fair I beg to inform you: 1. That at all the times during the year 1892 I was a duly elected, qualified and acting Justice of the Peace withi d for the county of Marin, State of California, having my office at >, in the town- ship of Sausalito. II. That during sald year 1892 and for a long time thereto I personaily knew Senator James G. Fair, a R. Craven. III. That several years ago—I cannot remember the exact year or month at the present time, but may be able to do so after reful investiga- tions—certainly prior to the year 1394, the said Jam me in company with the said Nettie Craven at my office Senator stated to me that they had called for the pur Justice of the Peace perform & marriage ceremony of the couple the presentation of the marriage licen: } that they had not taken out any license, as they did not wa known to the world at large, and that as a matter of fact th husband and wife by virtue of a marriage contract which they rior and subsequent 'w Mrs. Nettie having me as en them. I required t the Senator stated marriage were already had entered Feader, however, to divine what it is. | L Into between themselves some time befote, but that the lady that she Mrs. Craven-Fair has a way of looking a would be better satisfied to have the marriage solemnized by a Justice of the whole lot of things, and it is not nece: oo P N S e IV. That the said James G. Fair and the said Nettis R. Craven there- upon in my presence declared that they took each other as hugband and wife, and I thereupon pronounced them to be husband and wife. V. That both parties asked me to keep the matter secret and not to say anything about the ceremony % any one unless requested by either party to do so. VI. That I made a record of the proceeding, but that in the year 13%4 all my records were destroyed by fire during a great conflagration in Sausalito which destroyed a whole block. Yours respectfully, W. SIMPTON, Recorder of the Town of Sausalito, Cal. G. SIMPTON’'S SWORN STORY OF THE SAUSALITO MARRIAGE CEREMONY State of California, City and County of San Francisco, ss. W. SIMPTO! being duly sworn, deposes and say During the year 1892 1 was a Justice of the Peace for the Township of Sausalito, County of Marin, State of Californja, with an office at Sausalito; o that in the year 1892 and for a long time prior thereto I personally knew Senator James G. Fair and also knew Mrs. Nettie R. Craven; that about the vear 1392 and prior to the year 1504 sald Senator James G. Fair called upon me, in company with the sald Nettie R. Craven, at my office in Sausalito; | as soon as the case was called. Attorney That the Senator stated to me that he had called for the purpose of having | Plerson asked for the pencil deeds, dated me. as a Justice of the Peace, perform a marriage ceremony between himself e B O T and Mrs. Craven; that he also stated that there existed a contract of mar- | S5d e realty ‘and improvements on the riage, but she wanted a solemnization. I requested of them the presenta- tion of the marriage license, which they did not produce, but the Senator stated that he did not want the solemnization of the marriage known to the streets. She identified them and stated: ‘“"dhoss are the deeds I referred to last il Vednesday as the provision made for me . = . a o by Senator Fair in lieu of bequeathing That immediately thereafter ]dperlr\r‘n}eAdthP‘mal;:afe‘ ceremon nbe':\wew_n | me anything in his will." A letter from the said parties and thereupon made a record of sald solemnizatio my Fair to the witness, dated December 15, record book, which said record book was destroyed by the fire which oc- | 1894, was also produced, and all of the curred in Sausalito in 1§ uring sald solemnization the said documents were marked for identifica- |% James G. Fair and the Craven, In my presence, declared that took each other as husband and wife. I thereupon pronounced them s asked me to keep the matter secret and not to about the ceremony to any one, unless requested by one of the parties so to ¢ W. SIMPTON. Subscribed and sworn to before me this 12th day of August, 1869. HARRY J. LASK, Notary Public in and for the City and County of San Francisco, State of G. I Ccalifornia. @ -t e O 'VALID % : | brought the greenbacks.” : 5 “Did you send for the money?"” she was indebted at the time she mar- saloon or where he went to inquire “Oh, no; I never asked the Senator for | ried Fair. Pence objected to the ques-|for Simpton. She could not remember a cent. It was not necessary. | tion, which brought the following ex- [ his name. but has him located Then she testified that Fair had given | planation of its purpose from Mr. Mc-| ‘“The Senator told Stmpton he did not ys | want the marriage to be made public, but | that it was a time-killing enterprise cal- | her a diamond ring. The attorneys want- | Enerney: ed to know all about it, even down to the | “We ciaim_that number of times the witness had worn it. | of the late James G. Fa Attorney Charles Pence objected to the | testimony is an invent iine of ‘the cross-examination, asserting | account for any mon not the t culated to wear out the court. Mr. McEnerney retorted: “It is the kind of examination that is calculated to wear out some classes of To this partment.” Falr never bought dresses for his al- The Sausalito Ceremony. count on expense when building a gown then went on dfd not get from the Senator was a XS Christmas present or a token in commem- oration of the anniversary of their mar- | riage. To show that her story was an unrea- sonable one in some detalls, Attorney Plerson asked if it was not a fact that during Falr's lifetime and subsequent to daughter Margaret had much displeased at the co and it was in deference to her said that she did not ¢ made her any more Falr's wife th: had been before. “That is just exactly what we widow | hat her | cannot teacher in the San Francisco School De-| tunes of the silk nightshirt this time.” to tell | S wishes o civil ceremony took place. She | thet consider that it an she have | it, w the wanted him to keep a record of he promised to do,” continued ness. At this stage of the proceedings the Fair and we claim he ne attorneys went off wrong, the Simpton let- but that on the contrary ter and afdavit were produced and the $30 a month salary she received as a|scene followed which has already been described. Wanted to Adopt Margaret. witnesses, We are going to proceed along | A long_line of guestions as to how ® this line because we think this witness 13 | Senator Fair knewd she had returned Mty ouid she et Ao fabricating and all her testimony is | from the East in 1892 brought another R e Do DREGEC omi Attariey: Xunin | he had shown her from time to time copies of all the wills Pierson had been leged wife, but he always supplied her | e B ot the with funds to pay her dressmaker, Mrs.l “These questions are preliminary to the | Preparing for M and is g““—;fi*i{_‘r’“m';: Purcell, ~ He is reported to have toid the | Sausalito ceremony. repliec et e anel o e T = = lady of the thimble and thread not to | McEnerney. ‘We will not follow tr B e aete At Tntar Mt T sell, J. Wilson, on behalf of the children, for Mrs. Craven-Fair, but to provide her | Mrs. Craven-Fair - 500, 000 with everything in ’the dress line she | how the Sausalito affair occurred and the | offered to comprom's S ‘,‘,f');',; ui?fi wanted. The only thing Mrs. Craven-Falr | circumstances which suggested it. Her | believed the children were s Judge Slack knocked out the trust clause in the alleged will. After that they re- fused to negotiate with her. A provision of all the proposed compromises was that she was to be protected from all no- torlety. She testifled that upon one occasion Falr wanted to adopt her daughter Mar- aret, but for some reason mot explained May 23, 1592, she had shaved her war- | rants on the school fund in order to raise some ready money. She admitted that Mr. Pierson was close to being right, but claimed there was no money in the sehool fund at the time and she was forced to get some money to complete some Invest- ments =he had made previous to ' her of which th not been informed. gifr iy son just what she thought of him in par- She was asked to name those to whom been contending all along,” was the tart . . o so. The petitioner's an- mark from Attorney Pierson. e falled to do so. ioner’ T fhe witness went into all the details | Swers in the suit Angus vs. Craven of the Sausalito trip, bultt'he nea;\*st she | v\"greflin. by ce. ese are 1d come to the date of it was between | signed “Nettl Fuly 10 ana August 20, 182 Strange as it | mer)xe _(crlg‘flku is morning at 130 o'clock. may appear, neither she nor the Senator | et any oné they knew on the day they went_across the bay. membered to whom Fair had spoken on that day was One man she re- the proprietor of the| by the Governmen in Finland lose from $6000 to suppression of books i i i A stylish suit or overcoat made to your measure for | ga-!,\ This is the suit or overcoat for the business man. He generally pays $17.50 to $20.00 for his clothes, be- cause he wants quality consistent with these prices. It is quality he is looking for—the price is of sec- ond importance. That is why these suits and overcoats are what he The price is lower than he usually pays—but the quality he gets is the same. wants. A $17.50 value for $13.50! by us before the raise and a special price make it so. ! Big cloth purchases Eight styles of suits and overcoats—any one of which made to order for $13.50. Samples free. If out of town write for samples and self-measurement blank. Mention you want Catalogue No. 2. S.NWood&Co. 718 Market and Cor. Powell and Eddy.