The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1890-11-25


proposition is not supported by any evi-
dence found in the record. The tenor Of
all the evidence is to the contrary and
moreover the charge is incompatible with
another charge and theory wrought out of
the evidence 10 be further constructed,
namely, an alleged design on the
part OF respondent 10 deiraud
certain heirs of their rightful
part Of said estate and an alleged con-
spiracy entered into by respondent with
others 10 carry out that fraudulent pur-
pose. Not only the honor of The evidence
as we view il, but the construction put
upon the evidence by appellants counsel
contradicts the allegation that respond
ent Is wanting in understanding.
The further and last ground Of disquali-
fication urged by appellant against the
issuance Gf letters Of administration TO
respondent Is "want of integrity" The
finding Of the court against that al
legged disqualification is designated
an error for the alleged reason that
such finding was not supported
by the evidence. In passing upon this
question Il will be necessary also to con-
slider and determine the alleged errors OF
law assigned in reference to the exclusion
OF certain testimony offered at the trial
on behalf OF appellant In addition TO the
fact that conviction Of an infamous
crime" absolutely dsqualifics an appli-
cant for letters Of administration, the
question OF the integrity OF the APP
plicant may be raised and be
tl. asaktaas ~ s.Hsat.l f0.x
tigation and Judgment II judg.
ment be pronounced 10 the effect that the
applicant is incompetent To execute the
duties Of the will by reason Of want OF
integrity letters shall not issue 10 him lsec-
tion 80 pro.prac. act n. just what degree
Of moral delinquency would justify tho
court in the proceeding 10 that judgment
Is not clear. Undoubtedly the accusations
upon which court should base this iudg-
ment ought TO he certain and grave in
their nature and be established by proof
which would, at least. approach the GER
tainiy required for conviction In
criminal prosecutions. An aban.
doned person may be guilty
of many dishonest transactions not pun
ishable by our criminal code as an sin
famous crime,n which. nevertheless,
would indicate such baseness Of charac-
ter, such want Of integrity and conscien'
tious honesty OF purpose as To rem
der him unworthy Of the trust in
volved in the administration Of an
estate. Under this statute proof may be
made Of such depraved conduct as would
impeach an applicants integrity aud JUS
tify the court in adjudging him incompe-
tent by reason Of want OF integrity. The
testimony which appellant insists indi-
Gates want Of integrity on the part OF
John A. Davis will not be examined. II
appears by the testimony Of respondent
that about three years ago, on an occa-
sion when he was summoned as grand
Juror for Silver Bow county, on his ex-
animation under oath rs 10 his
qualification 30 act as such, he
excused himself from such service by say
ing he was a citizen OF Chicago. This
fact, coupled with the further fact that
respondent testified in the trial of this
case that he had resided in Silver Bow
county since the fall Of 1885, Is construed
by appellants counsel as showing that
John A. Davis has falsely testified either
in one case or the other. We think IL is a
self-evident proposition that one who de-
liberately and knowingly violates the
sanctity Of his oath Is wanting
in integrity. ono OF appellants
counsel asserts IL is as his he.
lief that j. A. Davis, being examined un.
der oath, m order To escape jury duty as
citizen, he falsely testified that he resided
in Chicago, and that he did not reside AT
Butte, and so escaped jury service. This
Is grave charge, but the evidence does
not support Il. The respondent. Davis.
testifying in this respect, said he had re-
sided in Butte ever since the fall Of 1855.
He was residing there when summoned 20
serve on the grand jury, and as to that
matter he says in his testimony:
al excused myself on account OF my citi.
zenship about three years ago. l think
in that conversation told the Judge prob
ably, that was not n citizen here. |
think that was as much as two years ago.
know the Judge asked me at the time il
intended 10 become a citizen here. I
told him had not decided. told him
was citizen of Chicago"
In viewing this evidence Il appears very
plainly that the respondent made dis
tinction between residence and citizen
ship. There is no other evidence on this
matter than the testimony OF respondent.
II is simply the evidence OF respondent ms
10 his intention respecting his citizenship
and the expression thereof before the
court two or three years ago. II is not un.
common for a man 10 dwell or reside in
one country and at the same time claim
his citizenship in another We find moth.
ing In this evidence 90 Justify the infer
encc drawn tberefrom by appellants
counsel.
Appellant further undertakes to i'm.
peach the integrity Of John A. Davis by
attributing 10 him design to defrsud
certain heirs OF said estate Of
their rightful shares thereof,
aud in furtheranee Of such
design a conspiracy was entered into by
respondent John A. and his brother Irwin
10 carry such purpose into elect. To es-
tablish this fraudulent design and con.
spiracy, appellants counsel points to the
testimony Of Mrs. Ellen Cornue,a sister Of
appellant, Henry A. Root. Il appears by
the record that during the last illness OF
Andrew ]. Davis, deceased, she was sum.
moned from New York state by telegram
10 visit her uncle Andrew. In her testi-
mony on behalf Of Henry A. Root,
the appellant, she relates that soon
after her arrival in Butte City,
she learned from the attending physician
a