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


the evidence, to be further considered,
namely, An alleged design on tho part OF Ie-
spOndent to defraud certain heirs OF tnelf
rightful shares of said estate, and an al
legged conspiracy entered into BY Eespon-
dent with others to carry out that fraudu-
lent purpose.
Not only the tenor of the evidence a. we
view it, but the construction put upon the
evidence by appellants counsel, contra
diets the allegation that respondent is
in understanding.
The further and last ground of disuuali-
fication urged by appellant against the
of letters Of administr ation to
respondent is want of integrity"
The finding of the court against that al
legged disqualification is assigned as error
for tbs alleged reason that such finding WAS
not supported by the evidence.
In passing upon this question it will be
necessary also, to consider and determine
the alleged errors of law, assigned in refer
enco 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 disquali.
Ties an applicant for letter of administra--
ton, the question of the integrity OF the
applicant may be raised. and be made the
subject of judicial investigation and judQ-
ment.
Ii Judgment be pronounced to the effect
that the applicant is incompetent to exc
cute the duties of the trust by reason OF
him. (Sec. 50 Pro. Prac. Act).
just what degree of moral delinquency
would justify tho court in proceeding to
that Judgment is not clear.
Undoubtedly the accusations upon which
court should base this judgment ought to
be certain and grave in their nature, and
be established by proof which would at
O. hn MT raj
conviction IN criminal prosecutions.
An abandoned person may be guilty OF
many dishonest transaction not punishable
by our criminal code as an infamous
crime." which nevertheless would indicate
such moral turpitude. such baseness OF
such want of integrity and con-
scientious honesty of purpose, as to render
him unworthy OF the trust involved in the
OF an estate.
Under this statute proof may be made of
such depraved conduct ~ would impeach
an applicants Integrity, and justify the
court in adjadgan& him incompetent by
reason OF wasss os Integrity.
Tho testimony which appellant insists in
dicates want of integrity ON the part of
John A. Davis will nov be examined.
1t appears by the testimony of the res
that about three years ago, on an
occasion when he was summoned a. grand
juror for Silver Bow county, on his exami-
nation under oath as to his qualifications
TO uct IS such. he excused himself from
Chicago.
This fact coupled with the further fact
that respondent testified in the trial Of this
,nse that he had resided in Silver Bow
county since the fall of 1885. is construed
~ appellants counsel a. showing that
John A. Davis has falsely testified either in
one case or the other. We think it is IL
nj aHyS dnvNk AfAA v.t~r lr
liberately and knowingly violates the sane
tlty of his oath 10 wanting in integrity.
One OF appellants counsel asserts in
his brief that John A. Davis "beinR exam
med under oath, in order to escape Jury
duty as citizen he falsely testified that he
then 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 it.
Respondent Davis testifyinR in this re-
spect said he had resided in Butte ever since
the fall of 1885.
He was residing there when summoned
10 serve on the grand jury, and AZ to that
matter he says in his testimony, II excused
myself on account q citizenship, about
lion told the judge probably that was
1ot citizen here.
think that was az much 40 two years
lgo. ! know the Judge asked me at the
lime if intended to become q citizen here;
told him had not decided; told him /
vas citizen Of Chicago"
In viewing this evidence i appears very
plainly that the respondent made q dis
motion between residence and citizenship.
There is no other evidence on this matter
han the testimony of respondent. It is
imply the evidence of respondent as to his
respecting his citizenship, and the
xpression thereof before the court two or
hree years ago.
It is not uncommon for man to dwell
: reside In one country and at the same
limo claim his citizenship in another.
We find nothing in this evidence to
nstify the inference drawn therefrOm by
ppellant's counsel.
Appellant further undertakes to impeach
be integrity Of John A. Davis by attribut-
NJ to him design to defraud certain heirs
I said estate Of their rightful shares there
t, and in furtherance of such design con-
piracy entered into BY respondent, John A.,
nd his brother Erwin, to carry such pur-
ose into effect.
To establish thls fraudulent design and
onspiracy, appellant's counsel point, FIRST.
o the testimony Of Mrs. Ellen Cornue. a
lister of appellant, Henry A. Root.
1t appears BY the record that during the
he was summoned from New York state by
eleQram to visit her Uncle Andrew.
In her testimony on behalf of Henry A.
Root, the appellant, she relates that soon
fter her arrival in Butte City she learned
rom the attending physician that her un-
lie could not survive many days
That upon learning this she said to her
Uncle John. the respondent, "What sur-
'riso it would be to those aunts down there
shen they realize how much they will
,ave;" that he replied, saylng,'"If their
aieces and nephews do not put anything
INTO their heads they will be satisfied With
very little. Diana should have the place
where she is living; we will give deed to
her and few hundred dollars. and she will
That she then remarked to her Uncle
aunts such fools as he thought they were,
10 which John A. replied, "Well. if they do
too much talking will 20 in with JEFF and
take every dollar. / can 90 into Iowa and
prove anything. and it won't take very
much money to do it, either"
It appears by the record that the person
referred to as JEFF " is an alleged illegiti-
nate son OF deceased.
After Ellen Cornue related that CONVEX
'ation as aforesaid, John A. Davis testified
Is to the same conversation.
His version OF it contradicts Ellen Cor
lue's evidence in that respect, except that
hey both agree that she commenced said
1t does not appear that on any occasion
Tohn A. introduced such subject, nor any
ubiect kindred TO the one mentioned in
laid conversation, although he was in com
pany with his niece. Ellen Cornue, fire.
luently at Butte City, and they travelled to-
yether thereafter from Butte, Mont, to
springfield. Mass.
Nor does it appear that John A. sought to
persuade this uloC0 or Anv nna uho Ind