The Helena independent., 1894-11-09
MING MATTER SETTLED.
The Supreme Court Decides in
Favor Of the Exsculrix OF
the Estate
No Ground Was Shown for the
Appointment OF the
Referees
Mra Katherine Ming 10 Restored 10
1rus !essblp--other Declsloas By
the Supreme Court

Ions, the most important OF which was
| that IN the Ming case. This opinion
is by Justice Harwood, and Is con-
CURED IN by Chief Justice Pemberton.
Il orders the release OF Mrs. Katherine
L. Ming, the eXecutrlx OF the estate OF
John ill., Ming. who had been only
technically in custody for refusing 20
answer the questions put 20 her by
the referees appointed by ;he district
court 10 examine into the affairs OF
the estate. The supreme court de-
cides that the appointment OF referees
was not called FOR, and as Il wns not
lawfully constituted body Il had
no right 10 ask Mrs, Ming any ques-
lions. and her refusal to answer was
not a contempt, The decision also
holds that Hhe removal of the eX-
ecutriN and the appointment of tie
public administrator as special admin
istrator OF the estate was Illegal and
orders her reinstatement. As these
things were about all that her counsel,
j. w. Kinslcy. asked for. the decision
Is reversal of the entire proceedings
in the district court. The only thing yet
10 be decided is the question Of change
OF venue, which was refused by the
district court here
on the matter OF the appointment
Of referees the opinion says; This
was not a case for reference. The ex-
ecutrix made report concerning the
affairs Of the estate, covering the per-
iod intervening since her last report
OF 1889. and the same was not only un-
contested, but was accompanied ty
the approval OF all the heirs Interested,
all Of whom were of the nge OF ma
iority. Such was the showing, and
therein no ground appears. in refer.
ence to the report. for the suspension
or removal OF the eXecutrix: nor was
there any objection raised In reference
to the report"
In regard to the removal of the ex-
ecutrix and the appointment of the spe-
cial administrator, the supreme court
says by the same order whereby the
eNecutriX was temporarily removed. the
court appointed Jos N Kenck public
administrator. as special administrator
Ia take charge Of the estate. John II.
Ming petitioncd the court to revoke the
appointment of Kenck as specia, ad-
mlnistrator, and applied to be ap-
pointed to that position himself. In
this he was supported by his brother,
James L. Ming. and his mother. Kath-
crime Ming. No action was taken on
this petition. and writ OF certiorari
was sued out to review the proceedings
relating to the appointment of special
administrator. The law on the subject
OF the appointment OF special admins
traitors says the letters must be granted
TO the parties entitled TO them in this
order. Surviving husband or wife, chill
dren. father or mother, brothers, ETC."
The supreme court says that when
occasion arises for the appointment Of
special administrators, the court must
appoint from those In right OF success
sion. II they do not waive their right by
failing TO apply or failing to prosecute
their application, or in some manner
cOnscuting 20 the appointment of an
other. 1.-THE court is not at liberty to
pass over those To whom the statute
gives the prior right of both general
and special administration and appoint
the public administrator as special ad-
miWstTatDr. Or order III" estate INTO
the charge OF the public administrator
when an eNigency arises calling for the
appointment OF a special administrator.
w lblh llldA III hHHblllNllb lit GubilN
administrator as special administrators,
or in ordering the estate into the pub
lie administrators charge in this case,
while one next Of kin 10 whom the stat
ute had given prior right, the court ex-
ceeded its jurisdiction.
"As result Of our considera tion of
the proceedings, il will he ordered:
First that the petitioner in the writ Of
habeas corpus. Katherine l., Ming, be
discharged from custody. Second, that
the order Of the probate court, appoint
ing Joseph n, Kenck as special admin
istrator Of the estate with the will an
neXed, be vacated and set aside"
Jaslicu De Witt, in GisNntbG: to the
above opinion. holds that the ques-
tions fOr the supreme cunrt tp decide
were: First. whether on not the lower
court had jurisdiction To suspend Mrs.
| Ming temporarily. and appoint a spe-
Cial administrator; second whether the
court had the right to appoint ref-
Crecs 90 enquire as to whether or not
the executriX, Mrs. Ming, should be
! permanently removed and third,
whether the court had the power to
commit the executrix for contempt In
refusing 10 reply to the questions of
The referees and for refusing 10 pro-
cure the books and accounts relative
| To the estate as required by them.
| Judge De Witt holds. that In the mat
! ter NJ the writ Of crrtiorari involving
the jurisdiction 0f tho district court 10
I suspend Mrs. Ming as cXecutrix. and
/ tu temporarily require the public ad-
niulstratnr a. take charge OF the cs-
| tate pending ihc determination of the
/ question whether she should be re-
In the case OF the state eX rel Murphy
/ versus the court. decides that the
lower court has such jurisdiction lie
! holds that under the section of the
| revised statutes. requiring the probate
/ judge a. investigate the management
| ~ Hu executor %, AN estate In his charge
| whenever b." mas reason g. believe that
| thrrc has b'rn fraud Jr mismanagc-
mont II BE- his duty Ia make such in
1 r,-ugntlou, The opinion SAYS. "ln
one breath they Ohe Ming brothers,
/ charge their mother with u 100000
! fraud. aud iu the next they approve
uf all her acts as pNrCutrix" +" The
/ justice holds that under this cpndi-
! ttOu of affairs, IL was the duty of the
[ lower court tp Investigate Mrs. Ming's
management nj the estate. He also
| decided tlMt the dlatrict court had fun
/ power tp order "a reference to deter
muc whether Mrs Ming kept correct
accounts as eXecutriN. Taking the
Wow hc docs ~ the writ ~ crrliornri,
| Justice be witt Is OF the opinion that
Mrs Ming. IN refusing 90 produce for
! the referees the accounts uf her adj
mlnlstntl0u. WIS guilty of "a contempt
OF court. and that therefore the ha-
bras corpus proceedings should be dis
Iaisscd
Besides the Ming matter, orders were
made by the supreme court yesterday
as follows;
Brooke versus Jordan from the Lewis
land Clarke county district court. mo-
tlun FOR n rrheurlnE oyur-Tuled.
The matter of the application of
IChas IL. Mathorst from Flathcad
county, for - writ Of hRbcus corpus, was