The producers news. [volume] (Plentywood, Mont.) 1918-1937, 1936-08-28


petition or of the hearing for the
probate of the will was given to
plaintiff. 9 R. 1 ct seq. That j..
B. PoindeXter was a co-eXecutor
in the will and no notice was given
to him, though his residence was
well known, at the time of the
death of Montgomery, to be Homo
lulu, Hawaiian Islands. That
Gilbert never executed any bond.
10 r. 1. That no notice was ever
deposited in the Post Office adj
dressed to the heirs or to Judge
Poindexter. 10 r. 1. That GER
tain pretended waiver of such no
tice, in writing, of the time ap-
pointed for probate and on file IN
the records of the said court of
date, November 21st, 1919, with
names written thereon of this
plaintiff, Of James Montgomery, OF
Anna c.. Montgomery, is a forgery
as to such three names and ap-
parent on its face to be a forgery
as to such three names. That such
three names were at the instance
and request of J. H. Gilbert, made
to Cecilia l.. Montgomery, and
while she, his client, repOsed great
confidence in him as cashier of the
Bank of Dillon, and in the pres
ence of Gilbert, by said Cecilia
Montgomery written and without
warrant or authority, she wrote
the names and that Gilbert utter
ed the same by filing it in court.
1t is alleged in the complaint
that Gilbert gave notice to credi-
ors, according to statute, that
they present claims within ten
months after November 18th, 1919.
This date is noteworthy in con-
sidering the testimony. (Appet-
liant believes that the evidence
shows that this act of giving ro-
tice to creditors is the only act
done in the administration of the
estate by Gilbert that answers
completely to all the, requirements
of statutory regularity, freedom
from fraud, freedom from false
statements, freedom from imposi-
ton on the state court and done
without such delay as amounts to
a badge of dishonesty. 1t is our
contention that no other act in the
administration can stand the
scrutiny of a court of equity.
The complaint proceeds that the
assumption of Gilbert to act as
executor was illegal (a) because
plaintiff at the time the petition
was filed by Gilbert was less than
ten years old. The petition was
set for hearing but no notice of
the said petition or said hearing
was ever given to plaintiff. (b)
J. B. Poindexter, named as CO.
executor, resided at Honolulu, his
residence was known to Gilbert
and no notice was given him. [c)
That Gilbert executed no bond (the
will provided that both executors
might serve without bond but
there was no provision that one
mighty. (d) That no copy of the
notice of the time and place of
proving the will was given to any
of the other heirs of Montgomery
| (e) That a pretended waiver Of
notice was forged, photostatiC
copy of this waiver is before The
Court of Appeals as an exhibit
N. 1. The most causual inspection
shows that three names, including
the plaintiffs, are all in the hand
writing of Cecilia L. Montgomery
10 and II r.
The complaint proceeds that Gil
bert soon collected the life insur
ance, $40,OO0.OO and therefron
made payments of the debts Sc
forth above, as $22,760.79. Tn
complaint then omits narration 0
the affairs for almost 41a' years
and May 9th, 1924, "after much
if not the greater portion of per
sonal property listed in paragraph
fifth hereof had been converte
and disposed of to his own use
said J. H. Gilbert executed an
filed in said District Court o
Beaverhead County, a petition.
A copy is annexed to the com
plant as exhibit "D", AT R. 1
Sc R. II, being petition fo
leave to sell real estate. The a
legations in the complaint bein
found IL r. 20. That this pet
ton was set for hearing May 27tl
1924. That it was granted by G
hibit "F" on order of the Stat
| Court So r. 1 and following.
/ The complaint shows that c
/ April 10th, 1925, Gilbert filed
Beaverhead County District Cou
II return Of sale Of real estate an