The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-05-16
IN FAVOR OF CHESSMAN.
The Supreme Court 0%verrules Judge
Bucks Findings in the Kicker
Estate Case.
An Opinion Which Says That
There Was Nothing to
Justify Them.
r,.. 1y.+,o~ namondad With Instruction.
r,,o Matter Reminded With Instruction.
to Finds for Chsssm"n ana inc
Hoirs Paw Their Costs.

tn Finds for Chessman and the
ustrs Paw Their Costs.
Tho supreme court yesterday. IN a oeoi-
sion written by Associate Justice
and concurred In by Chief Justice fsmoe'-
ton and Associate Justice DeWns, oVst-
ruled Judge Buck. OF the distrios court III
Tho matter OF the estate OF j. q. h'okeF'
and remanded the case with directions to
.n.er INDICTMENT Diminishing the proceedings
Al the cost of tho heirs. It WAS a pressed
ina instituted in the probate department OF
>he district court of Lewis and Clarke
oounty, BY Martha p. Kicker on behalf OF
the heirs to require An accounting from W..
A. Chessmsn, executor of the estate.
Whom Joshua G. Kicker died Juno /. 1915.
hs left a widow, Martha T. Kicker. and
four minor children. His estate consisted
of S1S, coo In bank, and personal property
and land, etc.. amounting sltoRetne' W
S34, 467. SO, exclusive of the homestead. w.
A.. Chsssman was appointed executor. by
the will the homestead and household iur-
niture were left to the widow. Inc
executor was directed TO pay her for hsr
support and the support and education
of her children, $500 y month for i've years.
and $3.50 a month afterwards. As sacn
child rsachsd its majority and got is share
If the estate. the monthly allowance was to
be diminished to the amount OF that chllo's
uropoYtion. The executor was direcsed 10
convert all the effects into money and In
vest the prooesds and accruing intersss ID
government bonds. The first annual re-
mort of the executor showed that the avail
Able fundA after paying the allowances.
debts and current expenses. were $40. VA ~.
When the partnership affair In which de"
seased had been interested was closed out
in 1883 and the estate received from ~
s4.35O, the funds of the estate reached
S19. slS, AZ. This was the largest sum on
hand a, the close of any fiscal year. When
he eldest child came Of age in 1885 and re-
o.,ved hsr share, S4,634, there was q bal
n,ce Of S11, $50. From then on the funds
decreased in amount by disbursement OF
annuities, current expenses and ths pay
nent of two additional leRaoies az other
children came OF age. unsai ISL "heh inc
TIL funds Of the estate were not invested
IN government securities, as directed BY
the viii. but deposited in bank, the probate
court having justified the departure on ao-
count Of the heavy premium that would be
required, and tho o~onssquens drain on w.. ms
snnusl Interest down to three and
= half per cent. The adninistra-
zion Of the estate occupied sixteen
wears, and tho aocounts were approved
by tho probate court. The heirs, however.
questioned the good faith and correctness
Of the accounts. The opinion Of the su'
zc-n Aha ovAcnknF'a RG0Ountg
appear TO stand unimpeached, that as the
result of his management of the estate
he accounted for $56. 1863. SO. out OF which
be paid the widow and three OF the chill
dren annuities and lCgaeies amounting to
.S45, 28a 81. and that the liabilities OF the
estate consumed the balance of the funds;
also that the increase BY way OF interest
amounted to about $4,000, a rate equal to
10 per cent compound. on the average
funds during administration. Judge Back.
however, found that in addition to the
amount SO accounted for, tho executor
ought equitably to account TO the ne',s OF
said estate for the further sum OF S5l.-
6S4. 10 on June 1. 1891. and also for an I'M
divided one-half interest in u tract OF a
in Helena, apparently OF great value. l,
was from this Judgment n the overriding
of a motion for a new trial. shat shs ap-
peal was taken.
The supreme court, In les opinion. does
not pass on the legality of the order of the
probate court authorizing the executor to
make other investments except in govern
mept bonds. Judge Buck condemned the
executor for procuring such an order. The
supreme court says the circumstance under
which that course was adopted-thet Of
avoiding f~oreseen sacrifice of Thousands OF
dollars OF the limited funds Of the estate
with the final return of interest to thu
benefoiaries in double the amount which
could nave been obtained from the invest
msnt directed by the will, repels all at
tempted condemnation Of the motive which
opinion then passes to the questions de-
manding determination in the case.
1t ia admitted that the executor pune
tually accounted for all the principal funt
of the estate. with interest ut rates equal
ling 7.9 per cent compound. The trla
court admitted that the heirs Ros NOR
profit thar Kicker contemplated whom h,
made tho will. But 1t is contended that b
should be required TO pay q higher rate o
interest than he returned, on tho pars o
the estate funds as we're from time to time
in his hands. not deposited in bank at in
ersst, ns provided by the order of the yro
bate coart. 1t Is first to be inquired, say
the opinion, whether the law warrants tn
court in declaring q trust interest in land
of the executor in favor Of the heirs, upol
the proposition that at a certain time b
paid ia the purchase thereof moneys in hi
hands belonging to the estate. 1t wa
found by the court below that the execute
made use of $4,000 of the estate funds il
communicating n urchase of land for $40,
600. This Ia dis uted and tho finding
excepted to az not sustained by proc
The opinion pasass over this dispute, an
SAYS the executor has long since accounte
TO the legatees for the $4,000 with inters'
at 7.9 per cent compound. Granting,
says the opinion, that the said sum
money has been traced into the purcha!
of said land, ii has also been traced out
and beyond said land into the hands of I'll
legatees. Still 1t is Insisted that the hsi
are entitled to a half intereat in the ga
land, This involves q peculiar %situatio
II plainly requires the trustee to carry q
interest In the land. for the benefit of II
heirs, for years after they have admitted
been paid. not only all the principal of Il
trust fund, but interest thereon. Th
would seem TO DO allowing one to res
where he had not sown, and left the seed
the harvest. At least it would be allowir
the oestui que t~rustent to have and use Il
trust funds, with interest thereon at Il
rate paid, for his maintenance, and at ii
same time require the trustee to carry q
estate in the land in question. for his bel
eft, without any of his funds remaining
said land" The ouiuion further says tn
while. under the doctrine of equity Il
trustee should not be permitted TO NAL
my profit by the use of trust funds. 1t do
not warrant transferring to the heirs LAM
of tho executor, or interests therein, und
tho facts existing In the case at bar.
AS to the executors commission 81
opinion says the question to be determine
Ia whether the executor, whose administr
tion continues over a period of yoars, CT