The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1890-11-25
IN FAVOR OF JOHN A.
His Appointment as Administrator Sus-
tanned by The Supreme Court.
A DISSENTING OPINION
The Majority Dlscountenance the
Allegations OF Moral and Men,
tai lnoompetenoy-Su
mary of Decision.
Special 10 the Standard.

'uuRe McHattous appointment OF Jonn
A, Davis as administrator Of the estate Of
the late A. j. Davis. The opinion was
prepared by Harwood, j., concurred in by
Dewitt, j., Black.C. j., dissenting. A.
ter statement Of the case the opinion
reads in substance:
The objections set up by appellant
against the appointment Of John A. Davis
are; First, that he IL a nonresident Of
this state; second, that he is incompetent
To execute the duties Of the trust by reason
of drunkenness, imnroyidence, want Of
understanding and integrity. Evidence
was introduced in support of these allega-
tions on the part OF Henry A. Root as well
as evidence as to the qualification Of
John A. Davis and In his defense against
the objections 10 his appointment. The
assignments Of error contained in the
record, relate first 20 the alleged Insult.
cheney 81 the evidence 10 justify the find
ing of the court sgaInstthe alleged causes
OF incompetency; aud secondly, TO errors
OF law, alleged TO have occurred at the
trial aud been excepted to by appellant.
The first ground of error assigned is in
effect that the evidence is insufficient TO
support the finding of the court that the
respondent was not qualified, and should
not be adjudeed incompetent, by reason
of drunkenness. Upon a careful review
Of all the evidence introduced we find no
error in the conclusion reached by the
court below upon this question. This
question does not turn upon the fact that
the applicant is shown 10 he in the habit
OF using intoxicating liquor to some ex.
tent The drunkenness contemplated by
this statute undoubtedly Is that ex-
cessiye, inveterate and continued use
of intoxicants 10 such an ex.
tent as 10 render the subject
Of the habit an unsafe agent TO entrust
with the care Of property or the transac.
ton Of business. The vital question in
the investigation of this objection is
whether or not the applicant 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
some extent.
In the case at the bar il Is admitted by
appellants counsel tli.., the evidence in
troduced 10 establish the incapacity OF
John A. Davis by reason Of drunkenness
is meagre, Witnesses introduced in sup
port Of that charge testified that John
A. Davis drank intoxicating liquor and
some testified that he used the same 10
considerable extent al times. Those wit.
nesses would not undertake 10 say that
John A. Davis was incompetent 10 tran.
sact important business; nor did they
testify 10 other facts from which the court
could reasonably draw that conclusion.
In defense against this allegation il was
proved by number Of witnesses on be-
half Of John A. Davis that during his
residence in Butte City since the fall Of
1886 up 20 the fall Of 1858 he was engaged
in the wholesale grocery business at
that place as the senior member Of the
firm Of Davis 4 Co.. that he was attentive
to that business and conducted IL with
success, care and foresight. lie acquired
the reputation of being a conservative.
successful and clearheaded business man
and that other business men Of that city
sought his counsel in reference 10 bust
ness transactions. The testimony intro.
duced on behalf Of John A. Davis shows
that since the fall OF 1855 when he retired
from said wholesale grocery business he
has been engaged in attending to impor-
tant business matters for the First National
bank Of Butte and also for the deceased.
Andrew J. Davis; such as looking after
claims owing TO said bank, rebuilding the
said bank after its destruction in the fall
Of 1859, and attending To important litiga.
ton in Iowa for the deceased. The testi-
mony OF these witnesses as 10 the respon-
dents habit Of using intoxicating liquors,
is 20 the effect that his use Of the same
was temperate. We think the court prop
erly found upon the proof that the appli-
cant was not incompetent by reason Of
alleged drunkenness. See Ketcheles
case l-Tuck \. Y, sur. rep. 50.
Improyidence was held up as ground OF
disqualification Of John A. Davis and il is
urged that the court erred in finding that
the same was not established by the eyi.
dence. In support Of this ground Of dis.
qualification our attention is called to two
facts showed by the evidence: First, that
respondent, at the advanced age Of sixty
one years, is not possessed Of property Of
any considerable value. Secondly, that
since lss5 he has not supported
his wife and minor children. The
symptoms Of anImprovident Temperament
would evidently be carelessness. indiffer.
ence, prodigality. wastcfulness or negli.
gence in reference TO the care, manage
ment and preservation Of property in
charge. We do not find In the record any
evidence TO show that respondent pos
sesses, or has exhibited In reference to
property the charact cteristics which consti.
tute improyidence. On the contrary there
is evidence showing that he has been
engaged extensively In mercantile busi-
ness; that he has been entrusted
with the custody, care and expenditure Of
large sums OF money and superintend.
ence Of undertakings oiinportancei involy-
ing large expense, and IN none OF these mat
ters is Il shown that respondent was want
ing in foresight, care aud diligence in
the management and preservation Of the
property committed in his charge. The
court appears TO be fully sustained by ev-
idence in its finding that respondent is
not disqualified by reason o: improvi.
dence.
Want Of understanding was alleged as
a ground Of disqualification Of respond
ent, and the finding Of the court against
| the evidence of that fact Is assigned as