The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-02-24
An Important Decision BY the su-
preme Court on a Billings
Will Case.
Motion to Dissolve the Attach
ments Against GREENWOOD,
BONN g. Co
Tho Grand Jury Takes . Look at tho Hirh
School uilding-Other Court
House News.

The most important OF the d0clHloni
handed down by the supreme court yester-
day was that prepared by Justice Dewitt
In tho case Of Ida T.. Barney against George
NJ. Hays and Horny w. Rowley. Ida l..
Barney il a daughter of the late Chas. b.
Barney, Of Billings, by his first wife. Bar
ney made a will in June, 1889, the contents
of which do not appear in tho records OF
the case. On August 8, 1890, he married
Miss Ellen G. Brodie. Mine days later he
wrote to lion. L. N. Harwood, one OF the su-
prsn1e court judges. requesting him to
change or modify the will of 1889. or to
write a codicil. In this letter he expressed
a desire that his wife should have some
thing. Barney died in October, 1890. The
will of 1883, with the letter requesting that
it be changed, were filed for probate, the
latter document as a codicil. Judge Mil
burn, of Yellowstone county. tried tho
case. The jury found that the letter to
Justice Harwood acted as a codicil. Judge
Milburn, however. set the finding aside and
decided that the letter was not a codicil to
the will; that the will was revoked by the
subsequent marriage and was not repub-
lished by the letter; and that neither tho
will nor the alleged codicil should
be admitted to probate. This de-
oision would have given the
bulk Of the estate TO the daughter Ida.
The executors of the will appealed. JUS
tice Dewitt, in the opinion, coinclded in by
Chief Justice Blake, says it was, not dis
puted that the original will was properly
executed, and before marriage was a valid
one. tt is what is know as a Photographic
-:1lW ALoAM /; " $500 y - r. r,,, ~ NV ha focta RAJ in
his own handwriting, and requiring no
witnesses. The opinion further says that
it is conceded that the marriage revoked
the will. But, if the letter was a codicil, it
r%epublished the will and the two documents
constitute the last will and testament of
Barney. The whole gist of the matter, the
opining says. is whether the letter was a
codicil. The jury said it was. The court
set their finding aside. It was held on the
one side that the finding of the jury was
a conclusion Of law and the court was not
bound by it. On tbs other hand it was
held to be a conclusion which bound the
Judge. The supreme court says no one can
read Barney's letter to Justice HARDWOOD
and be in doubt as to what he intended
should be the disposition Of his property as
to his wife. Tbs judgment of the Yellow
stone county court is reversed, the cause
IolAHOGOs Auu bAo AID III SSuAO
to admit the will of 1889 with the letter as
codicil, the two writings together constitu-
ting the last will of Charles D.. Barney.
Justice Harwood did not sit in the case.
The case Of e.. A. Milot against Joseph
Reed was another important decision
handed down. In September, 1890. Milot
bought some real estate in Castle from
Reed. There was a clause in the deed to
protect Milot against any claims on the
property, The property at that time was
subject to $60.59 for taxes, which it WAS
claimed was an encumbrance, and which
Milot had to pay. He brought suit for the
amount. Reed interposed q demurrer,
which was ovsrruled and judgment was
entered against him. The case was APP
pealed. The opinion of the supreme court.
prepared by Justice Harwood, holds that
the warranty to the decd was sufficient to
property, and afirms the Judgment of the !
lower court.
A third opinion by the court was merely
on a question of practice. 1t was in the
case of Peter Arnold against John Sinclair.
Arnold claimed to have been Sinclait's
partner in the liquor business at Great
Falls, from August. 1887, until Februa y.
1891, and asked a division Of the profits, |
which was refused. Sinclair claimed that
Arnold was only a barkeeper at a salary of
800 a month. The jury found that there
was a partnership and the court ordered a
decree accordingly. An appeal was taken.
ArnolG's attorney moved to dismiss the ap-
peal on the ground that no judgment had
been entered. The supreme court holds
that tho Judgment WAS tlnal, and that the
appeal lies. 1t now comes up whenever the
parties are ready to argue it.