The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-07-23

his proceedings as such administrator
and be directed. after retaining his
commissions and a sum not to exceed
0.000, to provide for unpaid claims
against said estate, to pay over the en-
tire balance of the estate of Andrew
j. Davis to the defendant John +. Da-
Wis, as administrator of John A. Da-
Wis, deceased, be directed TO apply for
the legacy or device given to his father,
John A. Davis. in and by the will of
Andrew j. Davis, deceased, and after
receiving the same, and without
changing its form or before appropri-
ating any part thereof to his own use
or to the use OF anyone else, to pay
over one-half thereof to the complains
ant. There is also a prayer for general
relief.
Several of the parties 10 the COM
promise agreement under which the viii
of Andrew J, Davis was probated are
not parties to the action.
The objections urged against the bill
of complaint, as stated in the demurrers
filed, are:
First-That the facts alleged are not
such as to entltle the complainant TO
any relief as against the defendant.
~Second-That the court has no juris-
diction of the case stated In the bill.
Third-That IL appears there are divers
persons not made parties to the bill who
are necessary parties thereto.
The cause of action alleged in the bill
Is based upon the agreement between
the complainant and John A. Davis,
mentioned In the power Of attorney exc
cuted by the latter TO the complainant.
This instrument, as set forth in the bill.
is in legal effect a written admission
by John A. Davis hat he and the COM
plainant had entered into an agreement
by which. so far as necessary to be here
stated, the complainant was TO prose-
cute and defend all actions necessary
TO establish the validity OF the alleged
will of ndrew j. Davis. and the right
or John A. Davis is TO the legacy there
by given TO him, the complainant TO
bear all the costs incident to such liti-
cation, in consideration OF one-half Of
whatever property John A. Davis might
become entitled TO receive on account
or such legacy either as a result of the
final judgment establishing the validity
OF the Will or as the result OF the COM
promise OF any litigation or controversy
concerning Its validity. The present ac-
ton Is In the nature of q suit for the
specific performance OF this agreement,
and IL IL be true. as alleged. that the
has been fully performed upon
the part OF the complainant. and the val
tdity OF the viii of Andrew J. Davis has
been finally established. his right TO the
performance of such contract as
against the h~eirs-at-law Of John A.
and the administrator Of his es-
tate would not seem TO be doubtful. 1t
Is not suggested hat IN. agreement is
upon its face, or that IL is in
equitable in its provisions, and I kno
no principle Of law which would
deny to the complainant the right TO It's
upon the facts alleged. In
deed that the bill OF complainant sta ties
a cause OF action was expressly decided
by the New York court Of appeals in
the case of Davis VS.. Cornue. ISL ".
Y. l72, 5, C. IS n. Il. Rep. 44s. The COM
here was the plaintiff in that
action. and upon a complaint alleging
substantially the same facts as are
in the bill now ulnder considera-
ton, he sought to enioin some of the
to the compromise agreement. /
referred to, from receiving
any part Of the state OF Andrew J. Da-
Wis, and, in passing upon the suficiency
that complaint, the court in that case
said:
We are OF the opinion that the court
lad jurisdiction and authority To award
I Judgment against the defendants in
personam, restraining them from re-
eeiNing and dissipating the funds be-
TO the estate of Andrew j. Da-
Wis. and that the complaint states facts
TO constitute a cause Of ac-
There was a dissenting opinion in that
,ase. but upon a ground other than that
10 the suficiency OF the COM
olaint. Upon that point. the author Of
he dissenting opinion. Bartlett. J., said:
Il am OF the opinion that the COM
1laint does state a cause OF action, and
hat the court below had a limited ju-
in a technical sense, but.
within its discretionary power, IL could
iecline 10 exercise it,"
IL
In my opinion the bin states a cause
& action within the equitable jurisdic-