Thursday, March 13, 2008
Page 15
REMINISCING (Column)
MacDonald Represents Church in Invalidating Bogus Will
By ROGER M. GRACE
J. Wiseman MacDonald, who became the first attorney for the Archdiocese of Los Angeles when it was formed in 1936, had long been handling legal work for the Catholic Church. One of the earliest of the cases, if not the first, in which he provided his services was a probate matter in 1898 entailing a bizarre fact situation. He was “associate counsel.”
The church was contesting the purported last will of Stephan Silvany, a peg-legged man who was a local institution, said to be the city’s oldest “bootblack” (shoe-shiner). In a 1891 will, Silvany had left all but $500 of his estate to Francis Mora, then bishop of the Diocese of Monterey and Los Angeles, in trust for the purpose of constructing an orphanage for Catholic girls. However, Silvany supposedly signed a new will two days before his death on Jan. 10, 1898, in favor of a man who, the evidence indicated, had spirited him from his home when he was moribund—over the objection of his physician and nurse—for the ostensible but doubtful purpose of providing care.
The estate of the penny-pinching decedent then was valued at $10,250 (or $264,000.34 in terms of 2007 dollars).
MacDonald and the church’s senior counsel on Dec. 6, 1898, obtained a jury finding that the second will was forged.
A new trial was sought by the proponent of the questioned will, Francisco Quijada, based on misconduct during argument to the jury by an attorney for the contestant. It wasn’t MacDonald’s Dec. 1 argument that was in issue but the later oratory on the part of the feisty lead counsel, Zach Montgomery…who, in addressing the jury, was alleged to have said of Quijada and his two cohorts (among other things):
“Not only ought they to be prosecuted for forgery but even for murder. They ought to be hung for murdering poor old man Silvany.”
There had been no evidence of a homicide.
Presiding over the case was Orange County’s first Superior Court judge, J.W. Ballard. (That county had been formed on Aug. 1.) Ballard found Montgomery’s remarks to have been harmless.
The California Supreme Court on Dec. 19, 1899 affirmed, finding ample evidence to support the verdict.
The opinion, by Justice Jackson Temple, recites, with obvious skepticism, Quijada’s testimony as to the scene in which Silvany executed the will by making a cross:
“The dying Silvany, uninstructed and without prompting, went through the entire ceremony of the execution and publication of the will just as a lawyer, if present, would have directed, not only omitting no requisite, but everything is done in due order; and it was no small feat for the witness, who has long resided at Los Angeles, but cannot speak English, to recite it so completely and in order. And it was thoughtful on the part of Silvany, who, according to the witness, had consulted no one in regard to the will, of his own motion to suggest that no bond be required of [executor L.C.] Flores. Otherwise, Flores would not have been able to qualify. But, while we can but wonder that all these things were so well done by those from whom we should least have expected it, we are unable to compliment the attorney who drew the will in the same way.”
The attorney, A.A. Montaño, had drawn up the will at Quijada’s request, and brought the document to Quijada at Flores’ saloon on Main Street. Temple’s opinion says of the lawyer:
“He received his instructions as to writing the will solely from one who was practically to get the entire estate under the will. It does not seem to have occurred to him that it would be a proper thing for him to see the proposed testator, to make sure that he wanted to make a will at all, or such a will. And after the will was prepared he did not think it necessary that he should read and explain it to the testator, to satisfy himself that it expressed the real wish of the testator. This was quite out of the ordinary course. But the attorney by appointment went to a saloon, kept by the person who was named as executor without bonds, to read it to the devisee to whom practically the whole estate was left by the will, to learn from him whether it was such a will as the testator wished. For all this, the will may have been an honest will, but if it had been designed to force its execution upon Silvany, or to forge a will, the course taken was the precise course which might have been adopted. If Silvany was alive, and desired to make the disposition of his property, it is strange that the attorney did not ask permission to see him, and was not asked to attend to the execution of the will.”
By the time the opinion was handed down, Montaño had left Los Angeles and was practicing law in the Philippines.
Copyright 2008, Metropolitan News Company