The Helena independent., 1891-12-29
Two Decisions in the Davis Will
Case Rendered by the Supreme
Court.
Lower Court Sustained In Refus-
ing to Appoint Him Con-
eral Administrator.
Chief Justice Blake Dlssents- The Peti-
tion Of Appellant Should he Heard
on Its Merits,

Two opinions we're rendered yesterday in
the Davis will case by tho supreme court.
which are against Henry A. Root, who
sought to be appointed general admins
traitor of the valuable estate. Tho first de-
oision, from which Chief Justice Blake dis
sents, is in the appeal of Maria Cummings
one of the contestants. from an order made
by Judge McHatton, Of Silver Bow, refus-
ing to remove John A. Davis an special ad-
ministrator and overruling motion for q
new trial. Counsel for John A. Davis ar
gued NJ their first point that the supr eme
court had no jurisdiction to entertain this
appeal, for tho reason that no appeal lies
from the order. They insisted that this
was an appeal from an order refusing to
vacate an ordcr for the appointment of an
administrator, and refusing to remove the
special administrator in charge of the ss-
tate. The purpose Of this proceeding was
to obtain the appointment of an admins
traitor of the estate. The final determine
ton Of tho proceeding was an order deny
ing such appointment, says the supreme
court. Further, the court says that of the
demand for the appointment Of Henry A.
Root as general administrator, it is as-
not qualified. and that letters of admins
tration had not been Issued to him, loft the
way clear for the appointments Of another
administrator, and that Root was entitled
to such appointment. In the case of this es-
tate no general letters of administration
wele issued prior to the discovery
of tho alleged will. There had been merely
an order that letters issue to John A. Davis,
which order was prevented from taking ef-
feet by tho appeal and other proceedings,
and in the meantime the alleged will was
offered for probate, and the contest thereof
initiated. The petition asks the court to
take notice Of the proceedings of the lower
court. "Now, if it was proper for the
court to take notice of these proceedings,
and there is no doubt of it, then the court
would at once. in considering this petition,
and the law applicable, be confronted with
the fact that it was asked to inquire into
died testats or intestate, while that ques-
tion was pending in an issue framed
for trial in that court, to contest an alleged
will offered for probate. and, moreover, that
in granting the prayer of this petition the
court would be assuming that it was proved
that decendent left no will; while at the
same time the court entertained the petit
tion for the admission to probate of doc
ument purportinR, and alleged to be, the
last will and testament of the decedent."
This opinion is by Justice HAYWOOD and af-
firms the decision of the lower court.
Chief Justice Blake, In dissenting from
Justices Harwood and Dewitt, says that
the order appointing John A. Davis should
be set aside, and the court below should
proceed to hear and determine upon its
merits the petition of the appellant.
The second opinion was rendered in the
appeal of Henry A. Root from Silver Bow
from an order refusing to hear motion.
Justice Dewitt, for tho court, says that the
samo result was sought to be obtained in
this case as in the appeal of Maria Cum
as general administrator of the estate. 1t
is apparent that the result cannot be OBJ
tained by the Root application. Nothing
can Ee accomplished by our entertaining
this appeal, and inquiry would be fruitlesa
for the court and the parties. 1t is rem
dered so by the decision in the Cummings
case. Ths.appeal is dismissed.