The Providence news. (Providence [R.I.]) 1891-1906, 1900-01-18
MUNICIPAL COURT SUSTAINED.
That Court Refused 10 Grant Permission 10
Executor 10 Sell Real Estate.
APPEAL TAKEN TO APPELLATE COURT.
Judge 0ltois After Fearing Argumsrts Of Counsel
Decided That Ihs TslIiOn Mas p,Opey Re-
fused interesting Point lnVowd.

Judge Dubois in the jury trial waived
division OF the appellate court, today.
heard the interesting case of Edward
w. Fiske, executor VS.. Charles Walker
ct al. Mr.. Fiske is executor of the last
will and testament of the late Amos
Fiske. and the case came before Judge
Dubois on an appeal from the munich
pal court Of this city, that court having
refused 10 grant the executors petition
FOR leave TO sell real estate belonging
TO the deceased 10 pay debts.
AIR. Fiske claims the estate owes him
$l332.37. and he filed one account which,
by consent of all parties interested.
was allowed. objection 20 this account
was made by the heirs of Amos F'skc.
when the petition to sell real estate
was presented by the executor be-
cause the account contained items, it
was claimed, did not belong in II.
These items were $500 paid for the
building OF a barn and advances made
legatees under the will OF the deceased.
The municipal court refused 10 al
low the petition for sale and the ex-
'ecutor took an appeal. Col. Z. j. Arms
was counsel for the executor, today,
and James Tillinghast represented the
heirs who opposed the petition.
OBJECTIONS MADE.
AT the beginning of todays hearing
Col. Arms wanted TO read the Will, but
Mr.. Tillinghast objected and then Col.
Arms offered certified copy of the ac-
count of the executor. To this account
Mr.. Tillinghast also objected and the
main controversy between heirs and ex-
ecutors was at once before the court.
Mr. Tillinghast argued that the mu-
nicipal court was right in deciding the
petition could not be granted becaps.
the account contained items not pror-
erly there The account began IN ls9l
and ended in 1898 and as 70 the allow
ance for building a barn and advances
made TO legatees they were clearly NOT
allowable and brought the case within
the principle OF Herrick VS.. Williams.
where the appellate court on an appear
from the allowance Of a ,hird account
of an administrator went into matters
in the first and second accounts. rht
municipal court had certainly nothing
TO do with certain matters In Mr.
Fiske's account and the agreement or
the parties interested could not give
Jurisdiction. II the matters that did not
belong 20 the account were stricken out
the executor would owe the estate, Mr:
rillinghast said. some $4,000 and or
course the selling of any real estate
pay debts would be wholly unneces-
sary.
COL. ARMS ARGUMENT.
Col. Arms said no appeal had been
taken from the allowance OF the execu-
tive account. The barn was Duilt oy
approval OF the heirs and was per-
manent addition to the realty. He cited
Hall VS. Anthony where the supreme
court held that unless In cases OF fraud
the allowance of an account py the
probate court was conclusive unless an
appeal was taken. Col. Arms citeu
many decisions in other states 10 the
same effect and urged that the account
could not be attacked I'm a collateral
manner as was sought I'm this case on
petition for ieave TO sell reat estate.
The case of Herrick vs.. Williams relied
on by the other side was a case IN
whcih an appeal had been taken.
Col. Arms said the widow Of Amos
Fiske had been given a life estate IN
her husbands property and during her
life the executor kent the property IN
repairs paid taxes and vster mites and
everything that was done, including the
harm built was done bv consent of heirs
ard dnrc for the benefit ~ creditors.
Tho account was conclt'lve on all
pclnts. Col Arms claimed and the exc
cutor should have the money he paid
out -
Judge Dubois decided 20 allow the
account for the time being and said ne
would hear further testimony on the
point OF the conclusveness or the ac-
count ,,
Nr Tnlinghast said the trouble with
Col Armes' argument was he did not
take into account th- ctanges In nur
nrabet, system since the case ~ Hall
VS. Anthony. The old system had been
wiped out by later legislation ana tne
9cciefcrs on this leeiel q lon was In
arrepment with The decision IN Herrick
vs. Williams.
The petition was dismissed.