The daily morning journal and courier., 1903-11-09
BRYAN THE ExEcUToR.
Protest is overruled-Raps From Coun-
 sel for Bennett Heirs.

oAh1SAAs 41lIH LE(AI2SO Protest is Overruled-Raps From Coun-
 , sel for Bennett Heirs.
 The proceedings in the probate court Saturday in the contest over the will of Philo s. Bennett, in which w. J. Bryan has figured for several weeks, were en- 1ivened by a protest made by ex-Judge Henry Stoddard, counsel for the heirs, against MT. Bryan being allowed to qualify as an executor. MT. Bryan was permitted to qualify.
 Henry G. Newton. counsel for MT. Bryan, said, in reply to a question by Judge Stoddard: ''Mr. Bryan will not s appeal from the admission of the will to probate. Whether he will appeal from the courts decision to exclude the l scaled letter he is not required to state /, now
 MT. Stoddard then began speech of further protest and explanation, say ing:
 Your honor has decided that the sealed letter is not part of the will Wessha1l insist upon the performance of his duty as executor if MT. Bryan is to act as such. But if there is any lingering suspicion that he intends to take an appeal, it is not right that he shall qualify as executor. He cannot serve two masters in this matter. If he intends to uphold the law as your honor has spoken 1t in your decision, it will, be contrary to the law to under ]; take to destroy that will. By taking
 appeal from your decision Mir Bryan undertakes course for the advantage of himself and his family if he chooses to put aside his own.
 This is property affair. If that sealed letter is a part of the will, MT. Bryan's family have a property inter- est, and unless by some formal renun-
 citation he puts beyond peradventure the question of whether he will try to
 take advantage of that sealed letter he may also be considered to claim a prop erty interest. It is utterly inconsistent for Mir. Bryan to act as executor and at the same time take an appeal from the courts decision. If it is held that that is low I shall advise my clients to take an appeal to test that question.
 Under some other clauses of the will, certainly the seventeenth clause, MT. Bryan takes as trustee, and not as an individual, certain moneys. If he be- comes executor he, also stands as trus- tee under the will. That creates two contesting parties, and one of them seeks to qualify as executor. should not think that he would want to feel that his duty as trustee might influence him agains his duty as executor. I again protest against the qualification of William J. Bryan as an 'executor.
 MT. Newton, for Mir Bryan, said: l do not know that this court has jurisdiction. MT. Bryan's duty as ex- ecutor in no way conflicts with his other duty under the will. In a large majority of wills probated here the ex- ecutor is also a beneficiary, and this fact does not prevent his acting as ex- ecutor. Often, also, the executor is trustee, and often the executor brings suit to construe the will. This court certainly has left no uncertainty in it's decision. The argument by MT. Stod- G1ard is on behalf of those who intend to frustrate the intent of the man through whom they have received large benefits.
 Judge Cleaveland ruled that he had no discretion in the matter, and had no right to prevent MT. Bryan from quali- flying as executor.e ;
 When the: amount of the bond to be required was preached, MT. Bryan said to the cours:
 The amount of the estate is, on face value, about s302, ,000., A part of that is book accounts, and the actual value thereof cannot be stated by any one without 8 careful examination of the books more extensive than I have given. I am willing that MT. Stoddard shall suggest the amount of the bond. I have no preference at all. So far as acting as executor is concerned, I was asked to act by the testator, and, as have said publicly, I feel I ought to do it unless the court appoints some one who is interested in carrying out the will, instead of attempting to de- feat it.
 MT. Stoddard remarked:
 That suggestion is rather irrelevant. | The court has already said he had no Jurisdiction. I take it that you will | obey the decrees of the superior court. | Of course, my clients will have to pay for this bond. It all comes out of their share. The estate is practically part nership property in New York city l That partnership property has got to | be turned into money by the surviving i partners, and then the money turned | over to the heirs by the executors. That will not be for some months, and I sug- gest that a small bond be fixed now, with the reservation that we have the | right to come to your honor whenever I a large amount is coming into the ex- ecutors' hands, and then seek to have the bond increased.