The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-05-26
Kicker ESTATE FUNDS,
The Supreme Court Has tho W. A.
Chessman Accounting Case
Before II.
Difference OF Opinion As to tho
Manner in Which He
Acted.
Col A. Q. Botkln Makes the Argument
for Jesse Kicker, the Minor Heir
and Petitioner.

Arguments were made In the supreme
court yesterday in the Cbessman account
ing in the estate Of j. G. Kicker on the p0-
tion OF Jesse Kicker, the minor heir. 1t Is
in this cass that Referee A. j.. Craven
brought In findings that the executor owed
the estate about $4,000. The opening ar
gumsnt was made by Col. A. g. Botkin,
who, with ex. Gov. b. r. Carpenter repre-
sent the minor heir. The argument was in
reply to the brief Of ex-Chief Justice Wade
and Massena Ballard, who appear for Mr..
Chessman. In their brief the executors coun-
sci say: "Chessman ~testiiies positively and
without qualification that he never used any
OF tho funds OF the sstate in the purchase OF
any lands or other property. The petitioner
seeks to overcome this positive testimony
OF the executor by asking tho court TO pre-
sumo that in the purchase from Terrence
O'Donnell made on Nov. L. 1876. only fous
months after the date of the appointment
of the executor, the funds of the estate
were used, from the fact that ut the date Of
such purchase the executor had in his hands
and not deposited the sum of So, 537. SO, be-.
longing to the estate. But this fact has no
force against the executor, or his direct
testimony, for the reason that it was the
duty of the executor to hold all the funds
of the estate in his hands for ton months
after the date of his appointment for the
purpose OF paying the debts Of the estate at
the expiration of that time.
1T having been the duty Of the executor
to hold in his hands all the funds of the e..
tate for the period of ten months after the
date of his appointment. there is NO sienif.
NQn Na tn tho fnnk that lrv;~ c.:l ~~..-l l..
had in his hands 90, 537.5 so of said funds not
deposited. In having theae funds in his
hands he was doing just what the law re-
CURED of him, and for 80 doing there can
be no unfavorable presumption against him.
The executor was not required to deposit
the funds of the estate on interest in the
banks at all. Certainly he was not required
to do so during the period for the presenta-
ton of debts or demands against the estate.
We do not claim or intimate that the exc
outor had the right to use the funds of the
estate in his business. or in making pur-
chases of property during that period. But
being required to hold tho funds for that
period, it oannot be presumed that he used
the funds because he held them in his
hands. II by any possibility such a pre-.
sumption could arise. it ia swept away by
the positive oath of the executor that he
never used the funds of the estate in his
business, or In making purchases Of any
kind.
The attorneys for the minor heir in their
brief say: This appeal covers an admin
lstration extending over a period Of sixteen
years and Involving a formidable array of
accounts: We are unable to find reason
for attaching merit to the proceedings of
the appellant in Withdrawing from tho
Peoples National bank the sum of Sc, 500
belonging to the estate. He was a director
and officer of the bank, and as such was
charReable with a knowledge of it's condi-
ton. 1t he had failed to recover tho money
by prompt and efficient measures it is
greatly to be doubted whether the court
would have relieved him from his liability
for the loss. But it is in evidence that he
had actual and direct knowledge of the
fact that the bank was in embarrassed cir
and unmistakable duty to with
draw the funds Of the estate; and when
that could bs effected by the simple pro-
cess OF cancelling his personal note for II
like amount it became little else than alb
surd to claim CT edit for a course of action
that was obligatory upon him in his char
aeter as trustee. and was dictated equally
by q prudent regard for his own interests.
I'm conclusion we submit that the record
before the court recites a history of NAL
such az is happily rare in the ad-
ministration of estates. We cannot regard
sAAO OsAVA WAo0 bUNA d0 uSllDeraL0 AQO 0yS-
beginning with the assumption of
the trust and continuing to the very day
when this proceeding was instituted.
Judge Buck is quoted when he passed upon
The case below: The executor has used
in his personal business the funds of an
estate which the will of the testator pro-
7ideu should be invested in a particular
During the period in which the
Executor used these funds, money loaned
Is per cent. to II per cent. per
'nnum. Certainly the opportunities for
Zain must have been great, especially to a
nan of this executors sagacity and activity.
n this proceeding the burden ia upon the
to account for or explain the re-
ult of his use of the funds of the estate
'sed by him in his personal ventures. He
las failed to do 50. and having had an op-
to explain. this court feels iusti-
led in presuming that he profted from the
lse of these funds to the full extent OF his
lhe arguments will be
ontinued to-day.