The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-12-09
v. 4, CHESSMAN
|ldge Buck Hands Down d Decision
IN tho Kicker Estate A.
counting Z
he Executor Is Required to Pay
the Heirs a Large Dif.
Ference.

The 1elrs q Large DIE
ference.
q Also VIII Divide on 4 Plece Of Prop
erty bought Partly With Trust
Bonds.
Judge Buck, in tbs district court yeatar-
~, handed down his decision inEthe mat
ii OF objections to the accounts Of M. IA.
heaaman, s~xecntor Of the satAte o. Joshua
hioker. The judge finds THAT Of tho
mounts resolved from the estate by the
kecutor, various amounta MT different
mes were not deposited or invested for
~ benefit Of the heirs. These amounts
ggreeate S135, 800. which the executor did
ot know or remember where he had placed.
he decision rsquitss him TO pay COM
ound interest on these sums. which it 10
Btimated will amount to about $4,000.
he Judge also inda that tho executor ussd
poney Of the estate in buying property
ision requires him to account to the hsirs
or I half interest in tbs ground. Counsel
pr Chessman made = motion for y rohsar-
pg. Bond was fixed at $4,000. Judge
tuck's decision in full ID ~ follows:
This proceeding is instituted BY An in
ant heir OF Joshua g. Kicker, deosased,
pr the purpose 81 opening the accounts ct
William Al. ChsssmRn as executor Of the
stats Of, said dscsassd. Joshua q. Kicker
led June 1, 1875, leaving . valuable estate
b his widow and four children. His will
obtained 4 direction, among other pro
iaiona, that all moneys Of this estate avail
bls for the purpose should DO invested IN
United States government bonds. William
!. Chsasman, an old friend Of the deceased,
kyyirtus Of his appointment in tho will,
uly3 qualified AZ executor. On July n,
S7b, as executor, be fled a petition in the
probate court, representing that funds
mounting to $12,3l8 wers In the First
National bank and the Pooples' National
bank, OF Helena, on certificates Of deposit
or sir months, each drawing interest ct
he rate Of - per cent par annum, and also
hat the sum of So, 53O.33 was on deposit AZ
he banking house of u. Il. Hershfsld d
Bro, also drawing interest at tbs Same rate
f12 per cent per annum that said invest
nents wore safe. and that no better invest
nents could be made of tho above specified
ums, OF. n other estate moneys, than to
ksep them on deposit as received from time
10 tins in one or more OF the aforesaid
banks. On the same day on which this
petition was filed the probate court made
In order to tho effect requested. This order
vas made without notice to any Of the heirs
md without any appearance on their part.
Nanifestly, however, it's effect was bene-
ioial to all concerned, as. had the will been
ollowsd and all available funds invested in
government bonds, which ware then selling
1t q high premium and drawing a low rate Of
interest,", no small shrinkage would nave re-
ulted in the assets and revenues of tho es-
ate. In obtaining this order tho executor
vas probably actuatad by good motives.
Is was Modification of the expressed wish
bf the deceased Kicker, however, and the
assumption of a self-imposed additional
responsibility. nv.
Al soon as this order was made, and dur
nd the whole period of his e1ecntorship, it
became the duty Of the executor to obey it.
The order either clearly expressed IN hon
bst intent on his part to benefit the estate
by disohedience of the will, or the procure
nent of it was wholly without excuse Or
Justification. This executor, by his counsel,
,onttnds that he has accounted for every
hollar that has ever come into his
hands and has allowed interest
thereon ut an average rate Of seven
Ind nine-tenthB per cent. But the question
hsre presented 10, whether he obeyed this
Prder and discharged his full duty there
hinder. Tn contention Of his connae that
bis annual settlements (some. Of which Gully
were properly approved by the probate
eourt) are to govern the court at the pres
bnt time, is without 8 sufficient bnais. II is
Erue that section 1853 compiled statutes de-
blares that the allowance and settlement Of
hn executors account by the probate court
ia prima facis evidence Of its correctness,
bven ms to an infant interested in the estate.
but the momcnt in a proceeding of this
character when q foundation for a re-exam-
f~nation of an executors account is laid, the
primn facie force Of the settlement Of the
|sama 10 digsipated, tho burden shifts, and
1t baoomes the duty of the executor TO OK
plain suspicious or doubtful transactions,
hnd Of the court to see that ha discharges
his DUTY. Under tha order heretofore mon
tioned, it was the duty of the executor to
Invest NIL available funae, principal or &C
FOUNDATIONS of interest, in one or more OF
khs three designated banks IN certificates
bf deposits at tbs h1ghest rates Of interest
pbtainabls. "4. &g@o S
Was this done? Tho executor himself
testified that in 1878, Just prior to the fail
hire Of the Peoples National bank, by the
exercise Of persistent 5insistsnoe upon tho
hssistnnt cashier of the bank at tho time in
charge of it, and availing himself Of knowl-
communicated to him by such officer
of5 the precarious condition of tho bank, he
saved to the estate the sum of about $4,000
deposit there and consequently in jeop-
nrdy. He himself at the tims wnG indebted
to the bank in about an equivalent amount,
and he rescued the estnte fund by having
his indebtedness cancelled in consideration
of his personal assumption of the amount
due by the bank to the Kicker estate. This
certainly the act of a prudent, faithful
trustee; but does it deserve any lighar COM
In tho cancellation of his
personal debt he had all the reward to
which he was entitled. y ...5l N
But when did he pay into the estate
funds the amount SO assumed by himself?
full Ms late as the year 1883. For nine
years or more, therefore, he a personal
and uso OF the sum of $1,000 which
belonged to the estate, and which should
have been deposited in bank at interest at
the date be agreed to pay it.
Again, the executor admits that he per-
assumed the payment Of u Is 500
due the estate BY II Guthrie. and
just whom he paid it, he fails to tell. Cor
from his own testimony, however,
it is clear that he also had the use Of $1,000
for several years. Tho following figures
show the moneys reported on hand by the
at dates OF his annual reports, the
mounts deposited in bank, and the bal
Ances not deposited:
Total Est. Amount Bal. not
Aug. 81, 1870. ......., 1910 IL s,1a4.b1 8.205.5B
Aug. ii, 1877. $500. .20,95u.2d s,1s1.M 1l,9b2,Bf
Aug. y, ls78 ....... ", soo.ll 3,7bhso lb5sl72
Aug. 81, 1850. ...... !. q ,,2s6.i3 .7,7A6.bi 1s,400.14
Aug. 81, 1881. !. 80. 1Q,454.1D 1a,t9l.09 6.l02s OIL