Daily capital journal. (Salem, Oregon) 1903-1919, 1911-11-30


In re Estatesof Andrew A. Manser
deceased. Nicholas Manser, Christie
pher Manser, Peter Manser, Mary E
Rinkey and Mrs. John Kobe, and o.
f. Moran, respondents, V. William Ba-
ker, executor, appellant. Appeal from
the circuit court for Baker county
Hon. William Smith, Judge. Argued
and submitted at Pendleton, Novem-
Der 2, 1911. NJ. ID. Clifford Clifford
& COrrell on the brief) for respon-
/ dents. C. T. Goodwin (Gustav Ander-
son on the brief for a, pellant. Moore,
j. Affirmed
This is a proceeding to remove an
/ executor Andrew A. Manser duly
made a last will and testament where
in he appointed William Baker exc
cutor and authorized him to discharge
the trust without the necessity of Civ
ing bonds Manser died February 10,
1910, leaving as his only heirs his
brothers Nicholas, Christopher and
Peter, and his sisters Mary E. Rinkey
! and Mrs. John Kolbe to whom he be-
! queathed several sums of money, ag-
gregating $7,30000. The will was ad-
mitted to probate in Baker County
March %, 1910, and letters testament
airy were issued to the executor, who
thereupOn duly qualified At the same
time appraisers were appointed who
on July 15, 1910 filed an inventory
of the property of the estate, con-
tanning an item as follows: 1.-TWO
New York drafts for 100000 each,
which the executor produces and
states were given to him as a gift by
deceased on his last illness, $4,000. 90"
The executor on January 26 1911
filed his first semi-annual account in
which 1t was averred that prior to
the making of his said last will and
testament the said deceased delivered
and gave to the said William Baker,
as a personal gift to him, and as COM
pensation for his services Heretofore
given by him to the said deceased, two
bank drafts, issued by the Dillon State
Bank of Dillon. Montana, in the sum
of two thousand dollars each, and that
he has received the same"
The account also showed that after
deductin~ S1112.5S, disbursed by the
executor, there remained on hand
funds belonging to the estate amount
ing to S5,415.2S, besides unpaid prom
.issory notes appraised at $276O.OO,
not including interest, and that there
We're no legitimate claims against the
estate except the sum of money so
bequeathed, to discharge which the
executor petitioned for an order to
sell certain real property of which
the testator died seized.
The legatees interposed objections
to the petition for an order to sell
any land, asserting that with the $4,-
900, to which Baker laid claim, there
was on hand S9,415.2S in money which
sum was sufficient for all purposes.
They also petitioned for the removal
of the executor on the grounds of his
failure to file an inventory within the
time prescribed by law, and that he
had been guilty of fraud and malad-
ministration in claiming the $4,000. 90,
by reason whereof there was direct
conflict of interest between the estate
and him whereby he could not be
Indifferent in the matter The lega-
tees also ayerred, on information and
belief, that. the executor was without
means or property and there was dan
ger of his abusing the trust in fraudu-
lently administering the estate to their
prejudice
A citation was thereupon issued and
served upon Baker, who on March 2,
1911, filed an answer denying gener-
ally each avermento of the petition
and alleging that the inventory could
not have been filed earlier than it
was, because one of the appraisers
was absent, and that the report was
delayed in order to obtain information
regarding property belonging to the
estate at Dillon, Montana; that for six
years prior to his death Manser had
been the personal friend of the eX-
ecutor, who at the testator's request
went from Baker Oregon, to San Di-
ego, California, to care for him, and
in consideration thereof was given the
two drafts amounting to 100000, set
ting forth at length the circumstances
of the alleged donation, and tending
to show that the management of the
estate had been faithful and honest
No reply having been filed, the ex-
ecutor, on April 8, 1911, insisting upon
a default in this particular moved the
court for a decree on the pleadings,
dismissing the petition, which motion
was that day argued and submitted.
but no ruling was made thereon. Three
days thereafter without the introduc-
tion of any testimony. the county
judge found the facts as averred in
the petition and made an order, re-
moving the executor, requiring him
forthwith to file final account and
to turn over to the county clerk all
personal property belonging to the
estate, including the two drafts of
100000 each, the order declaring
that a failure promptly to comply
Herewith should be deemed a VIOLA
ton of law.
Baker appealed from such order to
the circuit court for that county and
in lieu of a stay bond, deposited with
the county clerk the property referred
to. including two drafts of $4,000
each. issued to him by the State Bank
of Dillon, Montana, in exchange for
like drafts which that bank had given
to the testator The appeal having
been tried the finding made by the
county court were approved and the
order affirmed, whereupon a motion
for a rehearing was interposed. sup
plemented by affidavits, and particu-
larly the sworn statement of the for
mer county Judge of that county, who
had admitted the will to probate, de-
posing that in consequence of the alb
samoa 0f ono Of tba oDproiearc of ~, n