The San Francisco call., 1895-12-13

had not years before divided with him his commits
transa ton to be carried back to the first point of
my argument, so far it is applicable for this
was direct fraud upon the estate The bargain
was made when there was no legal representative
OF the STATE. IL was mad without the sanction
sorting with each other for each others benefit to
the detriment OF the other heirs. 1t IS "A fraud
upon upon the estate. 1t is dishonest act, within the
HENRY MrLLER's POLICY.
have stated that this policy of Henry Miller
mas been from the very beginning pursued with
systematic and fatal consistency. There are things
IN connection with that, if your Honor please
upon which 1t is not pleasant to dwell which
would gladly pass over in silence and which
noJhlng but a compulsory sense of duty could in.
GLce me even briefly 10 comment upon. From
me me very beginning it was wei understood that
the positions Of executor and surviving partner
were inconsistent and that Miller could
nor occupy both He 80 advised
executors to be his own lawyers as surviving part
ner' Ihe firm seems to have appreciated the
strangeness of their position. 1t would have been
spectacle indeed for the same firm OF lawyers to
De seen coming into court a torneys for the ex-
ecntors demanding relief against Henry Miller as
surviving partner and at the same time appearing
ior the surviving partner resisting the demand.
1t would have been a spectacle, for instance to
nave seen IN this accounting suit the same attor-
neys bringing suit on behalf OF the two executors
as plaintiffs TO compel Henry Miller, as surviving
partner, 10 account ana appearing for Henry
Miller as surviving partner on the other side Of
the record to defend the very action they had
brought. That was not exactly done, il is true.
Inc attorneys have. nevertheless, continued to act
and are acting this day attorneys both for the
executor and the surviving partner-for Jesse
Potter and Henry Miller. In the early nart of
these proceedings the firm, although the business
was the business OF the firm, did not aunesr aS a
firm. The senior and Junior partners appeared for
Henry Miller executor, while the Intermediate
one appeared for Henry Miller as surviving mart
ner. The business, however, was confessedly the
business OF the firm. The fees from both sides
went into the firms Golfers / will NOT dyeu fnr
ther upon that, il your Honor please The subject
is not inviting. l viii leave it to any one who
hears me TO figure out for himself why it was that
nc Twin Narrra
attorney as Miller tie executor.
What was the second proposition? Mr.. Miller
had had an attorney for many years at that time
Mr. John Reynolds OF san Jose
When the will of Charles Lux was propounded
here in this court by Henry Miller it was well
known that there We're absent and minor heirs and
that an attorney would have 10 be appointed for
them. 1t was also well known to be inevitable that
theSe absent and minor heirs would be brought up
in Clashing conflict with Henry Miller who as
surviving partner. held in his possession the whole
OF the estate OF all the members OF the bar of this
state whom did Henry Miller ect TO be appointed
the attorney for the minor and absent heirs that
Reynolds.
do not charge that that learned gentleman ap-
preclated the position he was placed in. l do not
charge that he realized the motive which prompted
his selection. do not charge that he was party
any bargain still less any corrlpt bargain / do
state, however, that in ciphering Miller's in
tentlons and purposes, ii a significant fact be
shown and shall show, that Miller should in the
first instance poy the attorneys of the executors
OF this estate 10 be his own attorney surviving
partner, and Immediately thereafter select his
private attorney to represent The absent and minor
heirs. who represented substantially onehalf OF
The estate.
MILLER IS MASTER.
Furthermore, Mr.. Miller takes from the start the
position that his acts and dOngs are not TO be sub
lect to any body's control. He is master. No
has any right demand from this autocrat the
ordinary accounting which every agent, every
trustee cheerfuIy affords those interested in
the trust. Hence, lie resentS any attempt 10 make
him account.
In 1891 the German heirs filed in this court
- to Urdp Mr.
Miller 10 produce his accounts. That petition
resisted bv Mr. Miller as executor appearing bv
n eSSrs. f. B. Mastick and George Mastic<, two Of
the members OF the firm of Mastick. Belcher d
Mastick, and by Henry Miller, as surviving part
ner. appearing through W. Z. Belcher, the other
member OF that firm. OF course the attorney OF the
surviving partner acted independently OF The at
torney Tor the executor, though awkwardly
enough, to be sure, the and the surviving
Partner were one and the same person, and the at
torneys were all members of the same nrm.
hen ne learns that the German heirs are about
TO compel him 10 account he prOcures himself 10
be sued by his own attorneys The same he had
RON tie beginning tIe same 20 WnoIh ne as sur
Nivlng partner has paid over 900 in fees from
INC 4uiluS VI tue lirH' ne pIOchTeS nlIlSeIl re-
peat, 10 be sued by ms own attorneys IN a suit
brought by Jesse Potter and his mother, over both
OF whom he, at that time, held absolute sway
DO characterize these proceedings TOO harshly?
Do exagserate or distort their character? Your
Honor remem 5ers that in May, 1892, when Mr..
MiuerS resignation as executor was finally ac-
cepted Now. note few dates. Soon after that
this suit was begun. j. was from the start an
amicable suit between the executors on one side
and the surviving partner the other. Mr.. Miller
had refused TO account in this court. Mr.. Miller,
through these attorneys, had come into this court
ana under oath and over his signature had sworn
that lfe under no obligation to account; that
he Tgaid not account; tha. II was not for the III
teresi OF the estate that he should account
The same attorneys who had filed those answers
tor him but month before filed this suit against
him 10 compel him account. The suit was sug-
gested TO be brought by his own private attorneys
Tie prayer OF the complaint, even II the suit had
been otherwise brought in good faith prayed for the
very disposition OF the property which Mr. Miller
wanted, to wit; sale OF those vast possessions,
and a division.
Besides the suit was never intended TO 90 farther
than the mere filing OF the pleadings Il never
was intended to be prosecuted. 1t brought
simply 10 forestall and prevent the German heirs
averring that the executors had refused to bring
it: and II the executors had in fact, brought 1t il
closed the doors of any court OF Justice against
them. Now. mark the progress Of this suit, while
ii friendly suit and mark the condition after
ward, when it ceased to be so. The complaint was
in the suit-not scrap OF paper filed, not motion
made-until October IL, 1892, when formal
swer was filed by Miller. In this Miller
denies that he had ever been requested TO account,
and claims that heis not bound to account.
EAGER TO GO TO TRIAL
Nothing further was done until 1898, when. nine
months after the suit brought, on March Z,
Messrs. CARRIER, Boalt q Bishop substituted
by the plaintiffs their attorneys in the place and
stead OF Mastick, Belcher d Mastick Just
as this substitution takes place, the record being
then made up OF pleadngs which had been framed
TO suit Miller the complaint by his own attorneys,
Messrs. Mastick, Belcher d Mastck, and the an
swer oy his attorney, Mr.. W. f. Herrin, Mr..
Miller becomes at once tremulousIy anxious and
eager 10 proceed to trial upon those pleadiDgs. On
the 5th OF May 1898, he gives notice tO set the
said action for trial upon the ground that the said
action and ready for trial" 1t is AT issue
upon these pleadings: he wishes il tried upon
these pleadings. Indeed, If your Honor please,
at that time and before any amendment
OF these pleadngs had taken place so
anxious Henry Miller TO proceed to trial that he
could wait the pration OF the ordinary and
legal time of his notice, but procured from Judge
Sanderson an order shortening time SC that his
notice might come up Immediately out OF order.
The attorneys however did not fall into
the trap but amended their complaint. Bear in
mind that on May Is Miller anxious to pro-
ceed TO trial upon these peadings-framed in the
manner that / have stated-anXious, eager, impa-
tient for the fray. on June H. 1893 that
plant was amended by the new attorneys. In
that complaint they sought for an Injunction TO
strain him expanding the business. They
challene ed the legality Of this Las Animas lease,
to which have adyerted, and charged that II
procured by fraud. They prayed for division
and not a sale OF the property. They repudiated
the investments OF millions made by Miller in
land, on the ground that iC was violation OF his
duty as trustee TO invest them. They asked Tor
a receiver. They demanded 10 have their election
TO determine whether they would take the lands
which Miller had bought, or would hold him re-
sponsibIe for the amolnt of money invested.
AT once Miiler's anxiety to proceed TO trial van
everything in mis- power not to have it tried-tO
have it thrown of court, TO XIII II in its cradle
He was foiled in his ATTEMPT, and on the lfth OF
aarIr- affn ha Wit had