The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-11-25

incompetency, and secondly, to errors OF
law alleged to have occurred at the trial and
been excepted to by appellant.
These matters will now be considered In
in the order set forth in the record.
The first ground of error assigned is in
effect that the evidence is insufficient TO
support the finding of the court that re-
spondent was not disqualified and should
not be adjudged incompetent by reason of
drunkenness.
Upon a careful review of all the evidence
introduced, we find no error in the conclu-
sion reached by the court below upon this
question.
This question does not turn upon the fact
that the applicant is shown to be in the
habit of using intoxicating liquor TO some
extent.
However leprehensible that habit may be
as regarded from a moral point of view, it
is not within the province of the court to
deny letters of administration to an appli-
cant on the ground of mere use OF intoxi-
cants.
The drunkenness contemplated by this
statute undoubtedly is that excessive, in
veterate and continued use of intoxicants to
such an extent AZ to render the subject of
the habit an unsafe agent to entrust with
the care of property or the transaction of
business.
It is matter of common knowled &c that
the appetite for intoxicating liquor takes
such strong hold upon some individuals
as to become controlling influence.
The appetite strengthens by each sue
cessive indulgence. The will force becomes
too feeble to resist the craving of the appe-
tite; indulgence is unrestricted, constant
and excessive. person SO controlled by
such an app tite may be- said to be aban-
doned to the habit of drunkenness. The
unfortunate effect Of this habit is to render
the subject of it not only physically and
mentally incompetent to transact business
of importance and preserve property with
due care, but usually the subject Of this
habit becomes indifferent to the most So
cred duties, and careless Of demands Of the
highest moment.
Such person may we'll be adjudged incom-
petent to execute the duties Of tho trust in
volved in the administration of an estate.
It is undoubtedly easier. to prove the fact,
and the disqualifying effect of drunkenness
than to define the degree of intemperance
necessary to produce incompeteucy.
The vital question in the investigation Of
this objection is whether or not the appli-
cant for letters is incompetent by reason OF
The inveterate use of intoxicants, and not
Whether he may or may not have used the
same to come extent. G
In the cass at bar It 10 admitted by ap-
pellant's counsel that the evidence intro
duced to establish the incapacity of John
novio be, voosay, nf n 10 man
gre. Witnesses introduced in support of that
charge testified that John A. Davis drank
Intoxicating liquor and some testified that
he used tbs same to considerable extent at
times, yet none Of these witnesses would
undertake to say that John A. Davis was
incompetent to transact important business;
nor did they testify to other facts from
which the court could reasonably draw that
conclusion.
In defense against this allegation it was
proved by number of Witnesses on behalf Of
John A. Davis, that during his residence in
Butte City since the fall of 1885 up to the fall
of 1885, he was engaged in the Wholesale gro
Gerry business at that place as the senior !
member of the Arm of Davis d Co.; that he |
was attentive to that business aud con-
Quoted it with much care and foresight he !
acquired the reputation of being CONSERVE
tive, successful and clear-headed business
man, and that other business men Of that
city sought his counsel in reference to bust
ness transactions.
The testimony introduced on behalf of
John A. Davis shows that since the
fall of 1888, when he retired from
said wholesale grocery business he
d. nkA A..
important business matters for the First
National bank, Of Butte. and also for the
Andrew j. Davis. such as looking
after claims owing to said bank, rebuilding
he said bank after its destruction in the
TALL of 1889, and attending to important liti-
CATION in Iowa for deceased. ,
The testimony of these witnesses astto the
habits of using intoxicating
liquor is to the effect that his use OF the
same was temperate.
We think the court properly found /
upon the proof that the applicant was not
by reason Of alleged drunken
neea.
See Ketcheles Case l, Tuck. N. Y. Sur.
Rep. 81.
Improvidence was set up as ground of
disqualification Of John A, Davis, and it is
u1kC0 VA40v O0O OV0AV CAACA IA AAuOluK CuHC
the Same WINS not established BY the evil |
denCo. |
In support Of this ground of disqualifica-
tion onr attention is called to two facts |
shown by the evidence. First, that respond |
emit at the advanced age Of sixty one years, |
is not possessed OF property Of any consid-
cradle value. Secondly, that since 1886 he
has not supported his wife and minor chill
dren.
As to the latter fact the evidence shows
thnt separation took place between re-
spondent and his wife in 1885, and that he
has not supported his wife and two minor
cbilren since that time.
These facts do not tend to prove either
the providence or improvidence of re-
spondent. He may have attended all his
transactions IN reference to the manage
ment of property with the best of foresight
and "hoarded his gain with miser's care"
and yet not supported his wife and children.
Nor does the fact that Respondent has no !
estate, standing alone, sustain the charge |
of appropriateness. Emerson vs. Bowers, IA |
N. Y, 449.l
Improvidence is defined to be a want of |
care and foresight in the management of |
property. (Coope v. Lowerre, 1 Barb, Oh. |
Is, Webster's Dict, 10 Ency. of Law. 32l. \ |
Thesymptoms OF an improvident tenlpers- |
ment would, evidently, be carelessness. in |
difference. prodigality, wastefulness or
negligence in reference 20 the care. MANAGE |
ment and preservation of property in charge. !!
It is said in CoOpe '. Lowerre supra. ..the
improvidence which the trainers of the re-
vised statutes had in contemplation. "A a
orouud NJ ovCluaion ia TINT ,,< -~e 49,