The daily morning journal and courier., 1904-01-13
IN AND ABOUT THE COURTS
,JUDGE CLEAVELAND TAKES BRIEFS IN BENNETF WILL CASE.

JUDGE CLEATELAND TAKES BRIEFS IN BENNETF WILL CASE.
 
 Ra,chhordt Divorce caf'e win Not Come 10 Trial To-dsy-Jokn w. Douglass File. an Appeal to the supreme Court. The application to have William J. Bryan removed from tAe office of ex- ecutor of the estate offPhilo s. Ben nett came up for nearing before Judge Cleaveland in tlse probate court yesterday. Attorney John K. Beach, acting for Mrs. Bennett, and on behalf of her regular counsel, Judge Henry Stoddard, who is in St, Louis, read the application. Harrisonl Hewitt, who was with Attorney He.ry G. Newton. as counsel for MT. Bryan, presented the demurrer of his distinguished client to the application for his removal.
 Mr. Hewitt opened the arguments in opposition to the application and Henry G. Newton closed, following MT. Beach. Mr. Hewitt denied the claims that Mir Bryan is attempting to occupy an inconsistent position. The lawyer said that the claim that Bryan's ex- ecutorship is in antagonism to the will of the testator is unfounded.
 Tt is clear" said MT. Hewitt, that this court, in admitting the will, has admitted that Mir. Bennett intended that MT. Bryan should have the $50,- GOO mentioned in the disputed sealed kHn rf,a<r mi of 10 intention of the sealed letter is carry ing out the intention of the testator.
 "As to the allegation that MT. Bryan's position as executor tends to waste the estate, we ask, in what better position would the estate be if some other per- son than MT. Bryan were executor? He is not attempting, as is claimed by the other side, to charge up the ex- pense of taking this appeal. to the es- tate. The appeal from the order re- jecting the sealed letter, would have to be made whoever is executor. The executors position is not antagonistic to the intention of the testator. If it is to any one, itSis to certain of the 1egatees and no to all, as claimed. Even if MT. Bryan's interests did affect
 
 ground for his removal
 "Cetainly, your honor" continued MT. Hewitt, thecourt knows that if the appeal is successful the sealed let ter will be declared by a higher court to be part of the will. In that event Your honor would be asked to remove MT. Bryan from a position in which he could effectuate what the higher court would find to be the will of the testator. This would be absurd, if your honor pleases.
 Insofar as the application for MT. Bryan's removal sets up that he is endeavoring to take this s50000 by legal process, we say that he cannot getone penny of it except by decree of a court in proper jurisdiction.
 ''We claim that none of the grounds stated by the other side ar sufficient cause for our removal from the office of executor"
 Mir. Beach responded, saying:
 s'Practically the question here in- volved is whether MT. Bryan should have the s5O,0Oo or whether the heirs whom they (Messrs, Newton and Hewitt) represent, should have it. This court has already decided that that $50,000 belongs to us, by it's order ex- cluding the sealed letter.. We objected to his appointment on the ground that his position was inconsistent. That objection served as notification tt him.
 s'Then, after he was appointed MT Bryan elected to pursue that s50,O00 and we claim that that act as of ar executor, is inconsistent and ask his removal He attempted to claim this both as statutory legatee and execu. tor.
 We say" said MT. Beach, that ht cannot be executor and at the same time dispute the fact that the will un- der which he is actin is the will of tht testator.
 sAs to the appeal: he is estopped iron taking appeal by the decree of thi' court. He can't appeal if he holds tn, office of executor of the will which thi court has accepted. He is bound t obey the will as admitted by the cour and is estopped from dispute"
 After citing several cases from tn, Connecticut courts MT. Beach contin ued: After this courts decree, accept ing the will exclusive of the letter, h, chose to take the office of executor Therefore he's our trustee and there fore he has no right or precedent fo taking the appeal. We ask, will h serve as trustee for himself or as : claimant? Surely, we ask nothing nor than that the court effectuate the con sequences of his taking that office"
 Henry G. Newton, of counsel for MT