The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-05-16

interest that should be required from the
executor on funds OF the estate not depos-
tied in bank at interest. The rate OF utter
est paid by the banks during tho admins
ion. appears to have varied from IL per
cent. on a descending scale. TO six per cent.
The II per oent rate prevailed only a short
time after the estate came into the hands
Of the administrator. whom 1t was reduced
to 10 per cent. This was allowed until
and prevailed until 1883. In 1883 and 1884
seven per cent was allowed. and there
after six per cont. Regarding, the
rate Of interest. the court below
30 ordered The accounting shat the exeou-
tor should be required to pay compound
estate, not deposited at interest in bank.
at the rates OF 10. Is and IL per csnt per
annum compound during stated periods OF
the administration. The sum so accrulnR
by those rates WAS compounded by annual
rests 10 carry the interest over as principal.
The rates wore near the maximum obtaina-
BILE on loans by banks during the period
stated. The legal rate enforceable on de-
mands. In she absence OF an agreed rate.
during the same period, was and still is, 10
per cent. The supreme court says: I'VE
have been unable to find authority to sup
port the proposition chat q court has juris-
dietion to impose arbitrary rates OF inter
est above the statutory rate. in an equita-
bio accounting with . trustee; although
courts OF equity frequently require a lover
rate in such aooountings, rs an equitable
rate.
Then the opinion passes to the question
of compromising interest in accounting
with trustees. "The theory upon which
the court exacted such extraordinary rates
OF compound interest from the executor"
it says. was that. according to the testi-
mony of the anker money could nave
o.- l-c~1l "a Ah~ k;-nn L. ~rnoki0N u AnNh
rates. Nowhere in the record 10 there
shown any proof as to the net result of
loaning money during q given period, even
by such experienced finanoiers as bankers,
after deductiRg expenses and losses. In or.
der to ascertain the net profits which could
BE- derived from the use OF money, by way
of interest. Without any such inquiry
the rates of 10. Is and IL per cont were
designated BY the court for stated periods
of the administration. and the referee was
directed to compute at those rates during
such periods. c~ompoundinR by annual rests.
There is evidence in the record to the effect
that from time to time during the period in
question banking institutions contracted to
pay for the use of funds left with them for
q stated time, "A certain rate of interest per
annum. This is tho only evidence in the
record which approaches q safe criterion
from which there might have been found
the measure of net profts-er, In other
wo. de. the net earnings which could be
counted on for the use of money by way of
interest. While this testimony did not
take that form of inquiry exactly. 1t is evil
denoe OF what money could have earned
placed in such institutions, they insuring
the safety thereof, go far az their own re-
sponsibility went, and bearing the expense
and loss incident to its use. The tendency
of this evidence is to show what the banks
could afford to pay for money and insure
its safety, etc. Measuring the executors
returns by that criterion, a balances is
found in his favor; for. when the rate in
the banks went below eight per osnt the
evidence is that he kept on returning at
that rate, on moneys OF the estate not In
bank"
Further on thu opinion says it mast be
admitted that the executor has voluntarily
and promptly made returns OF income
double what could have been obtained by
the couse contemplated by the will, and
moro than the banks would have allowed
during considerable portion Of the time.
and more than the courts have found equit-
able in aocountinGs with trustees whose
conduct was found grossly detrimental to
the interests of the estate. And even
granting the worst that has been asserted
against the executor" it says, 1.-THE tenn.
Iorary use of certain of the trust funds in
private affairs. which is made the occasion
for sxacting compound interest in several
cases; still 1t appears, and Is not disputed.
L0ub tHlH oxeCubuk ubb oSoA ~ ~ bGhk buU
estate in no way suffered detriment there
from, and gained considerable the eby. II a
mans foot slip. or if he stumbles, and then
,eRatherinR himself, walks upriRhtly, and
delivers his burden in advance of all others.
without one whit missing. shall he be turned
upon and soourged with a severity exceed
ing that laid upon one who refuses to pro-
coed with the discharge of his duty alto
gether? II may be answered that if one
who wRvers is allowed to 90 without pun
ishment, others will walk unsteady. This
answer does not meet the situation. If he
was found delinquent it would be time to
consider his punishment. but If not find
ing him delinquent in any respect, more is
s1ncted shan for entire neglect. absolute
default would be encouraged by such un
wise Judgment"
In conclusion the opinion says: with
the carefullest investigation of the law
and facts, our deliberate judgment il
drawn to a negative conclusion on every
vital point in this case. There is no hard.
ship in this, for the executor must have
managed the afairs of the estate with
solIoitude for the welfare of the heirs. and
that his management has been fruitful OF
benefits to them. is frankly admitted. Such
results as are shown in this case do not
come from indiffe ence or neglect. In rem
dering the extraordinary judgment Of thi.
, case " sthink the learned judge Of the lower
court below must, without the deliberatior
9 usually manifested, nave adopted views
!. urged By the f~orceful eloquence of petit.
. TONER'S counsel. But thinRs only assumed
= in whatsoever eloquent phrase, or forms
= only printed. however real they may seem
:. cannot support the judgment of a court,
= An order will therefore be entered revers-
. Ing the Judgment in this proceeding an,
: demanding the case, with directions to en-.
. ter judgment in the court below, dismiss
= ing this proceeding At the cost of petit
> TONER"
. The Judgment of the lower court at Butt,
: was affirmed in the case of Ruth +. LeRRnt
> plaintiff aud respondent Va. Koderick ID
: Legqat. defendant and appellant. 1t wa
: an action to compel the reconveyance o
. real estate from Mrs. Leggat's brother-in-
j, Law, alleged to have been obtained from
. !. plaintiff by fraud; also for an amount fol
= profits realized by defendant in sales o.
. . portions of .be premises. Plaintiff. who il
= = a resident of Missouri, claimed that priol
. . to March 19. 1883, she was the owner of
. . ons-third interest in the Leg9at and Fostsl
: addition to Butte; that Of Dec. 10. 1887
. she gave LsRRst her power Of attorney Il
manage and sell plaintiffs pro. erty; thu
he acted on that powe. until it was revoked
. Dec. q. 1888; that ON March IS, 1883. Log
Rat fraudulently got from her a deed Of he
= interest In the said addition. The ALLEGED
= fraudulent conveyance was made by Leaga
. telegra, hing to st. Louis to know IL sh
, would take o., 900 for her interest. and sh