The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-12-09

TIE DAILY
tion from NIL tho Abovs polluted facts fs In
rssiatibiu, tlht tho executor for yaarg
failed til discharge hia daily na to thousands
q dollars h%slpn0itig, Y, ths estate. T ~. f.
also ineyitable Tint thase moneys wore
used iii tho private bnHii.ass 1T tho aexecu-
tor; we're slbiegted to tbs hazardous hnutn.
atipna ct bualneBa and speculation When
thoy should have bean 3anfely III banks on
deposit, drawing interest.
auah d condition OF AFFAIRS, tor tho axapll-
tpl,a counsel IN $gont0lid that gain, elenr5
md substantial, resulted to the eAtnto from
the manner lii which tho executor handled
and managed It's funds. The law, in its
wiadorn, self-tauRht md Acquirel by csn-.
turtles! Of observation and investigation. Of
human weaknssa, in numberlans decisions,
has again and ngail solsmnly iteratad and
reiterated, hs a onrdinnl principle, that a
trnatea#ahall not profit from trust funds.
Granted, this executor used theao funds
to nubHerye his own personal ends, but that
benefit only resulted To tho estate; granted.
that ns N result more profit and gain enursd
to hia widow and children than the tsssator
had contemplated when hs made his will;
still from any point Of view, ethical or
Legal, Urging every 0xtenuAtion to ba
urged in his behalf, this appropriation of
trust funds for his own individual use by
the executor cannot b. justified or excused.
heirs TO whom IL belonged lie, whatever
his secret motive may have been, yiolatxd 4
principle which the law declares ssacred.
Any reasoning which attempts to Justify
his action, il sophistieal when confronted
BY the decisions ct the courts Int
onsss3 cited and urged upon the consider
alton Of thiaj court by the executor, through
his counsel, in which the doctrine Ia enan-
cintsd that conrts must deal l~eniently with
executors who orr in their management OF
estate funds through honest ignorance or
mistake Of judgments, have no application
here. The executor has used in his per-
sonal business the funds Of m estate which
the willsof tho ~testator provided should be
Invested in a particular manner, and which
the order Of the probate court, which the
executor obtained himself in lieu Of and to
aupersede the will. directed to DO invested
in q particular manner During the period
in which the executor used these funds,
money loaned commanded rates OF interest
varying from Is TO ~ per cent per annum.
Certainly the opportunities for gain must
have been great, especially to a man Of thia
executors sagacity and activity. In this
proceeding the burden il upon the exScutor
W. ~ VI = uIC 4u6AAN IL A4H
use of the funds Of the estate used by him
in his personal ventures. He has failed to
do 80, ana having had al opportunity to ex-
plain, this court feels justified in presulm-
ing that he proAted from the use Of these
funds to chs full extent Of his opportuni-
ties. YEA z&= @ $G5%
The controlling principle hsre, then,
eliminated from all impedimentu, is this:
William A.. ChssBman used funds which
he had no authority to use. In doing 10, ne
ia in tho attitude of n borrower from the
Riokor estate. He must pay on all moneys
50 borrowed the highest rates of interest
which money commanded, and which he
would have been required to pay had he OBJ
tanned these loans az an ordinary borrower
from a bank. Furthermore, in order that
he may in no wise profit from this borrow
ing, he must pay interest on the acoumula-
tions Of interest from these funds. There
should be annual rests made for the pur-
The decisions which contain the true doc
trine of law are to the effect that the per
sons here Interested can elect to take the
profits made by tho executor from the
funds used by him, or interest computed in
tho manner above described. II is also
commended that the executor paid out
moneys belonging to r,t The estate estate 4. Il n
real estate, taking conveyances in
his " name. In one instance only is the
court sufficiently advised by the evidence
to find that he did this. From the evil
dence. direct and circumstantial despite
an expreRs denial. on the part OF the exscu-
tor that he ever purchased any pro perty
with estate funds, or this property in par
%tioular, it appears that on May 20, 1883, the
executor already having in his hands q
large sum not deposited belonging to the
estate. drew from the First National bank
the sum Of $4,000 belonging to the estate;
y %&1f & rniIT N ot1r ~ u 1aTntoCnftn1 wnrg%ha
same day only $500, and that O the same
day he made a payment, partly in cash, of
some $4,000, to complete tho payment on a
tract of land which he purchased for $40
600, from Levi Fl. Child and others. AS 70
tho land SO purchased, hs ia a Trustee for
the heirs Of the Kicker estate to tho extent
of one-half interest therein, and he must
account to them therefor as to all portions
OF the Same sold by himself, and as to all
that remains thereof which he may still re-
tain. f "@@s.. @."& ~
Again, it is contended, and rightly, that
the executor retained sums of money as
commissions from time to time which he
should not have retained until 4 final sot-
tiement of his accounts. 1t was a common
error until the supreme court of this state
tho question, that an executor hud
tho right to retain commissions as this OK
ccutor did. Little blame, therefore, at
taches to him for having done 80. Still he
E1lBL E6AulIu lLlobC OOlAIAlholOAb 6Au EtY
interest thereon from the dates on which
they were retained at tho rate of 10 per
cent yer annum, CO .&H3@ 4
As to The remaining contentious, that
the executor compounded claims due
the eatate i~mprovidently and without
authority, ana that he credited himself and
exhibited a receipt for ar item Of $500
which was never paid, this court must
decide in favor of the executor. The evil
denco adduced as to the last afor6aid acts
does not sufficiently impugn them; and az
to compromising debts due the estate with
ont al order Of court. il he did 50 for the
best interests OF all concerned. the law
authorizes this action. r.
The order Of the court in this proceeding
is in conformity with the views expressed
In this opinion. %"'.'@ @,r- *
Mineral baths at Mineral Springs Hotel
only rs cents. .,. ~ I'M .
Efiss Mary e.. Jac,1man gives private
lessons In shorthand. Rossn Is Bailey
block. Special rates to Dec. 15.
e. NEW COUNTY SEAT. n-
A Fine Town Assured in the North ern
e. a Part OF Montana. N
At the live town of Cheteau, the future
county seat of Teton county. there will be
d sale of 275 town lots Dec. ~, 1891. For