The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-04-12
AN EFFORT TO QUASH
The Davis Will Case Up for Hearing
on Roots Motion to Set Aside.
ARGUMENTS OF COUNSEL
On April 20 1t VIII Be Heard Again
a Defect In the Title OF the
rrcceedings-PetD Davis
share of the state.
ARGUMENTS OF COUNSEL


Mediation yesterday afternoon for
hearing on the motion of Henry A.
Root and the John A. Davis heirs to
set aside and quash the big petition Of
Mrs. Elizabeth A. Smith and the cita-
ton issued Hereunder, seeking the re-
vocation of the probate of the will
Judge w. w. Dixon, ]. b. Clayberg and
John +. Forbis appeared as counsel for
Root and the Davis people, and Judge
Smith of San Francisco and Thompson
Campbell of Butte represented the Pc
titioner. The first ground upon which
1t was asked to quash the citation was
that the title of the proceedings was
not properly set out in 1t. The only
title used was I'm the matter of the
estate of Andrew ]. Davis. deceased"
and Judge Dixon said IL should at least
contain a notice as to who was the
petitioner. The second ground was
that the name of Mrs. Smith appeared
nowhere in the citation. Mr.. Dixon
raised the serious point that the ques-
tons went to the jurisdiction of the
court and could not be remedied by
amendment of the petition and cita-
ton. They were matters absolutely re-
quired by the statute and not having
been included in the petition could not
now be inserted. the time for contesting
the probate of the will having expired.
Another ground raised on the motion
to quash was that there was a mis-
joinder Of parties by including in the
petition the husband of Pet Davis, one
of the devisees of the will, and that her
personal representative was not made
a party as required by the statute.
Mr.. Dixon repeated that 1t was now too
late to amend or correct the petition
the year in which contests could be
made having expired. The statutes ex-
pressly say that the institution of con-
tests are limited to one year after the
admission of the will to probate and II
there are no contests the probate shall
stand. A petition in contest must be a
complete one and in the absence of that
the probate can not be disturbed. If a
defective petition were considered a
proper one a person might as well file
a scrap of paper and then perfect the
petition after the expiration of the
time allowed by law in which to insti-
tute contests.
Thompson Campbell, in reply to Mr..
Dixon, said that the personal repre-
sentative of Pet Davis was not a neces-
sary party to the proceeding and that
the statute did not contemplate that
non-residents of the state were neces-
sarily included, but that IL referred
only to parties within the Jurisdiction
of the court Mr.. Campbell said that
they had but recently heard of the
death of Pet Davis who, il appears,
survived the death Of A ]. Davis only
about two months. AS she was enti-
tied, under the terms of the will, to a
lifetime maintenance in the estate her
heirs have a claim against the estate to
the amount of her board and clothes
for two months. No administrator has
ever been appointed or asked for in her
estate as far as her interest in the Da-
Wis estate is concerned, and therefore
her personal representative could not
be included in the petition and citation.
Mr.. Campbell argued that the petit
ton was in every way sufficient and
said that the codes, anticipating tech
nfcal objections to such proceedings,
provided that technicalities of that ma
ture should not invalidate the petition
so long as II could be determined from
IL what was intended by it. The title
might be omitted altogether and the
petition still be good. The title, how
ever, Is identical with all the other con-
tests heard in the case, including the
Root contest which had reached a set
tlemen after a trial in court. Mr..
Campbell said that even IL the court
should hold that the petition was insult
hcient they were entitled to amend
their petition and have a new citation
issued.
Judge Smith followed Mr.. Campbell
and read an amendment he proposed
to offer, setting out the facts of the
death of Pet Davis and that the only
estate she left was a two months
maintenance in the estate of A. J. Da-
Wis. Mr.. Smith said he had had some
experience in probate matters and
thought the other side would prefer to
have the whole matter of the contest
settled on its merits rather than seek
to throw IL out on a technicality and
keep the property of the estate always
under a cloud. He said he tried to pre-
sent the issues fairly and squarely
with the expectation to have them de-
termined upon their merits.
j. b. Clayberg, in closing the argu-
ments for the Root-Davis people, said
the motion to quash should be dis
posed of first and the petition to amend
was a matter to be considered at some
subsequent time. Mr.. Clayberg went
over the ground covered by Mr.. Dixon
and cited the statutes on the points
raised.
At the conclusion of the arguments
Judge Mediation took the matter under
A motion to quash the citations and
dismiss the petitions of the alleged
widow, Huldah Queen Davis and her
children, Mary Isabelle Morrow and
Laura Annis Calhoun, were filed yes
terday by Administrator Leyson, Henry
A. Root and the John A Davis people.
The grounds of the motion are that the
citation does not contain the title of
she proceedings, that IL does not con-
tain brief statement of the nature of
the proceedings; that the citation is in
other respects informal. insufficient and
void; that the petition does not show
the title of the proceedings and does
not show the kind of citation required
nor the persons to whom IL should be
and that the petition shows
that the citation should be issued
against other parties as well as those
against whom IL was issued The mo-
ton was set for hearing April 2s. and |
the demurrers to the petitions OF Cal |
win p. Davis and others were continued |
for hearing until next Saturday