#### In re THRESHER.

(No. 1,841.)

(Submitted July 13, 1903.

Decided October 26, 1903.)

*Attorney and Client*— Retention *of Funds*— Disbarment.

1. An attorney for an administratrix bad no right to retain from funds collected for her an amount claimed by him to be due to him from her decedent.

2. The retention of funds for such purpose does not merit so severe a penalty as that of disbarment, in the first instance.

APPLICATION for the disbarment of B. S. Thresher.

Dismissed.

*Mr. Thomas A.*Monim, for Complainant.

' An individual debt of administrator cannot be set off against a, debt due the estate. (Vol. 11, 2d E’d. Am *&*Eng’. Ehcy. Law, 931.) If the accused was owing a debt to the) estate he could not set it off against a personal claim against Mrs. Van Duesen. If deceased owed him, he could not take money collected and pay himself.

It was the duty of the adlministratrix to> proceed with collection of assets, notifying creditors^, etc., and distribution of estate. The accused was employed to assist in this work, but; neglected toi proceed with the administration and attempted to hold on, on some pretext or1 other', to all the money passing through his hands. For this he should be disbarred. *(In re Burris,*36 Pac. 301; *In re*Treadwell, I Pac. 124.)

*12Deceit is ground for disbarment. (Sec. 402, Code of Civil Procedure.) Deceit is, defined in Section 2292 of the Civil Code of Montana.

*Mr. B. 8. Thresher, in propria*persona.

ME. JUSTICE' MILBURN

delivered the opinion of the court.

On the 9th day of July, 1902, there was presented in this court an accusation in writing’, verified by the oaths of one James Sullivan and one Jane D. Nan Duesen, respectively, charging B. S. Thresher, an attorney and counselor at law of the courts of Montana, with certain acts involving deceit, fraud and moral turpitude, in violation of his duties as such attorney and counselor at law. The complaint containing the accusations was made by James Sullivan, and contains six counts. The accused duly appeared, and made certain objections in writing to all of the count® excepting the sixth, declaring as to •each of the five counts that “it did not state facts sufficient to' show deceit, fraud or malpractice on the part of the accused.” As to the fourth count, the accused further objected on the ground that it did not statei facts sufficient to show* that he had ever been convicted of any offense in any court. The. court, upon consideration, overruled the accused’s objections.to the first and fifth counts, and sustained those made by him to the. second, third and fourth counts. The writer hereof, for reason® contained in Ms concurring opinion in *In re Weed,*26 Mont. at page 516, 68 Pac. 1115, dissented from the order overruling the objections to the fifth count. It is unnecessary in this opinion to state tiie matters referred to' in the counts which were stricken out. Thresher appeared before the referee, to whom this court referred the matter for the purpose of taking testi-m|ony, and testified in his. own behalf, denying each of the charges made.

The first count charges the accused with unlawfully withholding from said Sullivan the sunn of $'4S.50, money alleged to. have been collected for him by Thresher as. his attorney.

*13The fifth, count charges that the accused unlawfully withheld and appropriated to his own use the, sum of $115.80, received by him, from Mrs. Van Duesen, this sum having been turned over to him by her withi instructions toi forward it to the Masonic Relief Board of Los Angeles, Cal., to pay for the transportation of the body of her deceased husband, and to release and obtain possession of certain pieces of jewelry said to be held by that board pending the repayment to it of money advanced for such transportation and other expenses incident to the illness and death of her husband.

The sixth count charges him with unlawfully appropriating to his own use the sum, of $15, collected by him from one J. E. IConen upon the compromise of a judgment debt of $500 against said Konen, the accuser alleging that said Thresher, without any authority so to do, agreed to, receive $200 from IConen in full of said judgment; and, further, that Thresher continued for a long time to misrepresent the facts in the case to Mrs. Van Duesen, in that he stated that an execution had been issued under said judgment, and that the1 property of the judgment debtor had been sold under execution, and bought in for the estate of her deceased husband, when in fact no execution had ever been issued.

As to’ the first charge it is sufficient to’ say that it does not appear to us that the accused isi guilty as charged. It is apparent from the evidence that the accuser is not a credible witness. We therefore find Hie said Thresher, as to this count, not guilty.

As to the second of the remaining counts, to-wit, the one numbered 5, we find from an examination of the evidence that the said Thresher was acting in a dual capacity,. His first connection) with the matter of the expenses incident to’ the illness and death of said Van Duesen arose from his being a member of the fraternal order to which the Masonic relief board is an adjunct. There were numerous compnunieations in writing between the said board and Thresher, and, after the sum of $115.80 was turned over to him by Mrs. Van Duesen to* be for*14warded to Los Angeles-, there were several interviews between her and him, in one of which she demanded the return of said sunn to her, she saying’ that she wished to- use it for an entirely different purpose. It appears1 that the members of the society of which the deceased had been a member had expended a sum of money largely in excess of the $115.80 for care of the deceased during his illness and in making arrangements for the transportation of the body to his late home. It seems reasonable to believe that Thresher retained the money in his possession, for at least part of the time, because there was delay in the delivery of certain articles of value belonging to deceased and in possession of the relief board in California. Negotiations between the board and the accused not having resulted in the delivery of the property to him, or in the payment of the money to it, Daniel Yancey, Esq., an attorney at law in Butte, Mont., was employed byi the board to procure the payment of said $115.80, and to deliver the articles of property to the proper person. Upon identification of the articles within a reasonable time, and upon demand made u,ppn the accused, the money was paid by Thresher to- Yancey. Some questions o-f veracity arose between the parties in California, Mr. Thresher and Mrs. Yan Duesen. After full consideration of the evidence in the case, we cannot say with any reasonable degree of certainty that the accused was at any time guilty of having unlawfully converted to his own use the said sum of $115.80, or any p-art thereof. The evidence is not sufficient to show any moral turpitude on the part- o-f Mr. Thresher in the premises-.

The accused was the attorney of Mrs. Yan Duesen in the matter of the settlement of the estate of her deceased husband, she being the administratrix. The aforesaid Konen, according to the testimony, appears to have owed the estate between five and six hundred dollars The administratrix, according to her testimony, authorized her attorney to settle with the debtor for $500, if he could do so, but, if not, to cause execution to is-su-e, and the property to be sold. On the property in question appears to have been a mortgage lien of $450, the premises being *15worth, according to the testimony of the debtor, the sum of $900. Thresher had been legal counsel for the deceased in. his lifetime, and, as he says, had a claim against the estate for services rendered. Mrs. Yan Duesen testified that Thresher promised to> perform the necessary legal services for her for a fee not to exceed $35 or $40. The daughter of Mrs. Yan Duesen testified that she heard Thresher say that he did not suppose Konen . would pay, and the only thing to do was to sell the property at sheriffs sale; that her mother ashed him, if Konen had paid anything, to which he replied “No”; that this was some time in September or October, 1901; that he said the only thing to do was to sell the, place; and her mother replied that she did not like to take a man’s home away from him, but she needed the money, and that she told him to pursue whatever course he thought best. Konen testified that he paid $75 to Thresher on or about the 13th day of June; 1901, but that it was paid at different times. It appears also that there was an agreement between. Thresher and Konen to' compromise the judgment debt for $200, but the property should not, be released from the judgment unless the said sum of $200 should be paid in full. It ap,p:ears, as above stated, that only $75 was paid. Thresher did not pay anyi part of the $75 to> the administratrix, claiming that he had earned that sum, or more, as counsel for the deceased and for the administratrix. Of course, it would be irregular for any- attorney to' withhold from the administratrix money collected by him for the estate on the plea that the deceased, in his lifetime, had become indebted to him. His only course in such a case would be to pay the money over to' the administra-trix, and to put in his claim against the estate in) the manner and form provided by law for the filing of claims against an estate.

The accused testified that Mrs. Yan Duesen said that she thought she ought to be able to realize $500 on the judgment debt; that he stated! that that was impossible; that the property was, not worth it; that it might be possible to sell the property under the, hammer for $750 or $800, and that it might not sell *16for inore than the mortgage and' other claims; and that she told him to da" whatever he thought best, and to realise what he could out of it, but that she thought they ought to- pay the entire judgment; that he said it wasi simply a question as to what could be realized; that soon after judgment the debtor came into' his office, and wanted to know what he could do about the judgment, saying that he never could pay it; that, if the creditor should “take his home,” nothing would be realized on it. After considerable discussion an understanding was reached that he wasi to pay $>200' at the rate of $25 per month, and, in case he did not make all of the payments as- agreed, anything that he did pay should simply apply on thej judgment. The accused admits having, received $75, and thinks that the last payment wasi made some time in September, and testifies- that he reported the full facts to. the administratrix as to what the agreement was; and that she said that that was as good as could be done in the. matter.

While we cannot approve of an attorney collecting his own-claims against an estate by withholding money collected by him for the estate without having first filed his claim in accordance with the; law, and having had the same approved and allowed! as- the law provides, and without having received permission from the administratrix pursuant to an order o-f the court to retain the money, still we do not believe such conduct calls, in the first instance, for soi severe a penalty as disbarment. Considering all the conflicting testimony and the fact that the testimony of the administratrix seems in a measure to- corroborate the statement of Mr. Thresher that he should db as he thought best in the matter of bringing about a compromise with the judgment debtor, we cannot say that his conduct in thus negotiating with Mr. Konen with, a view to- a settlement was reprehensible'.

It does not appear, in res-peot of any of the three charges considered that the accused is guilty as. charged, in any one of them, and therefore these proceedings are ordered dismissed.

*Dismissed.*