The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1895-09-28

not not satisaed sisatsi with M the MOSES ssatyment
and in May another petition for citation
was filed. The action was this time
brought in the name of Orville Moses
The executors then filed their inventory
S419, 600 not including the s64, 900 divided
among the children at the tlme
of their fathers death Con
cerning this the executors make supple
mentary statement in which they say
that before they qualified as executors, at
meeting of the children held at the
house OF their mother, the children
agreed to divide this S64, 900 and it has
been since regarded as liquidated and not
carried on the books of the estate; but in
asmuch as it is claimed that this should
| be added to the estate, Notwithstanding
the fact that the father OF Mr.. Orvllle
Moses received his share with the others,
they ask the court for INSTRUCTIONS con-
cerning it.
This division was made by common
conse Mt of the children and their mother,
who did not share in it, and while it was
not in accordance with the will, was re-
garded inasmuch as it affected only the
| inheritance of the members of the family
as a proceeding which would do no injury
and would be OF benefit to some OF the
recipients.
| Mr.. Williams the counsel for Mr.. Moses
moved that the amount be included in
| the inventory and renewed his motion to-
| day, which was granted as was one for
the inclusion of a $4,000 subscription to
the stock of the Goss Marine Iron Works.
| The evidence in the case was taken
sented by Charles W. Larrabee, ESQ.,, of
this city. and A. Nathan Williams, ESQ.
| of Boston appears for Mr.. Orville b.
Moses. The evidence given by the sur
| viVing executors was very yolum1nous,
| they being examined particularly as to
the division of the S64, 600, and the
management of the estate since. Mr..
Williams in his examination laid particu-
| lar stress upon the increase of capital
| stock made in the Worumbo Manufacture
| ing company and the Androscoggin Water
company.
These are corporations in which the
estate is largely interested and are valu-
able properties, the woolen mill in par
ticular being among the best of its kind
in the country. 1t is Esaid by the ex-
ecutors that at the time the new
STOCK WAS ISSUED
they did not deem it advisable to take the
proportion which the estate was entitled
to receive at par and SO the new stock
was taken and paid for by the children.
oAA~
nature of stock dividend and SO part
of the principal of the estate, and they
say that it was by the issue of this new
stock that the corporations attained their
present prosperity. Mr. Williams claims
that the executors have never become
trustees under the will and that conse-
auentIy they are to be held liable as
executors, which might invalidate the
extensive real estate transfers they have
made.
When the hearing was resumed this
morning, Mr.. Williams first argued the
case for Mr.. OrviIle Moses. He pointed out
that.the executors IN their inventory had
failed to separate the real and personal
property, and said in substance:
In the next place we think that #
THE PROPERTY DIVIDED
ment of these executors, should be made
part of the inventory of the personal
estate. There can be no question but that
these securities should be added to the in
ventory for the statute provides for the
inclusion of all property in the possession
of the executors or coming to their
knowledge and certainly this property
was Within their knOWIeQge.
The capacity in which the gentlemen
on the other side of the case come here is
matter which should be determined.
and not as trustees. The will was very
carefully drawn in the manner in which
| it specified the duties and obligations of
executors and trustees. 1t provided that
the executors should file their inventory
and do certain other things before they
could assume their duties as trustees. LII
/ case where these obligations have not
been performed, how can the executors
claim to be acting as trustees?
| In support of his position on this point,
| Mr. Williams cited numerous authorities.
| Continuing he said in substance:
| In this case we find that these parties
accepted the trust. They did not give
of them They did no change the form
of their accounts. and if they acted as
trustees they were doing so in their own
| minds. They were in a position to take
| either horn of the dilemma as seemed
| best to them.
Now the rule of law is that the execu-
! tors cannot sell real estate without an
| order from the court, and so in relation
| to the sales of real estate, the trustees to
whom they may in future account may
ratify those sales, or hold the executors
| liable for any injury arising therefrom.
or it may result in the bringing OF an
equity suit to set aside the sales as
| Illegal.
Mr.. Williams did not take the same
view of some of the assets as did Mr..
Moses, claiming that among them were
some that were not suitable for the in
vestment of trust funds.
Coming to the personal estate, Mr..
Williams said: Now as to the
division of property made before the ap-
pointmept Of these executors they say i'll
their testimony that they We're very much
surprised at the terms of the will which
left all the property in trust except that
given to the widow. They knew that
they had no right to divide this property
but attempt to justify it by saying that
it was done by the unanimous consent of
the children, and of their mother. But
by the terms of the will which expressly
stipulated that the property was to be
held in trust and only the net income
used by the children it is no justification
to say that it was done by common con-
sent. 1t was a conversion, although they
object to that term, and it was a
TECHNICAL EMBEZZLEMENT
Mr.. Williams claimed that as a matter
of common honesty as we'll as law the