In re Estate

• Decision Date: 24 November 1890
• Citation: 10 Mont. 228
• Parties: In re DAVIS' ESTATE.
• Court: Montana Supreme Court

10 Mont. 228

In re DAVIS' ESTATE.

Supreme Court of Montana.

Nov. 24, 1890.

Appeal from district court, Silver Bow county; JOHN J. McHATTON Judge.

Nathaniel Myiers, Wade, Toole & Wallace,Frank E. Corbett, Stephen De Wolfe, and McConnell & Clayberg, for appellant.

Forbis & Forbis, M. Kirkpatrick, and J. M. Woolworth, for respondent.

HARDWOOD, J.

This is an appeal on behalf of Henry A. Root, an applicant for letters of administration on the estate of Andrew J. Davis, deceased. On the 11th day of March, 1890, as appears by the record, Andrew J. Davis, then a resident of Butte City, Silver Bow county, this state, died at that place, leaving an estate of the estimated value of four and one-half or five millions dollars. Among others, John A. Davis, a brother, and one Henry A. Root, a nephew, of deceased, petitioned the district court, exercising its probate jurisdiction under the constitution, for letters of administration on said estate; and each of said applicants also filed objections to the appointment of the other. Section 64, Prob. Prac. Act. These petitions and contests were heard and determined by the court making an order overruling all objections to the appointment of John A. Davis, and granting to him letters of administration upon said estate. Appellant, Henry A. Root, thereupon made a motion for new trial in said matter upon the following grounds: First. Insufficiency of the evidence to justify the judgment, decision, and order of the court, and that the same is against law. Second. Errors of law occurring at the trial and excepted to by the party making this application. Sections 323-327, Prob. Prac. Act; sections 295-301, Code Civil Proc. Motion for new trial was made upon a statement of the case, and, being heard by the court, was overruled, and this appeal was taken, both from the order overruling motion for new trial, and from the judgment and order of court granting letters of administration to John A. Davis.

Our statute (section 55, Prob. Prac. Act) provides the order of precedence in which letters of administration must be granted as follows: “Letters of administration on the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, who are respectively entitled thereto in the following order: First, the surviving husband or wife or some competent person whom he or she may request to have appointed; second, the children; third, the father and mother; fourth, the brothers; fifth, the sisters; sixth, the grandchildren; seventh, the next of kin entitled to share in distribution of the estate; eighth, the public administrator; ninth, the creditors; tenth, any person legally competent.” The persons, however, entitled to letters of administration, as prescribed in the foregoing section, are subject to a provision of the same section, to the effect that “no person who is not a resident of this state shall be appointed administrator;” and also to the provisions of section 59, as follows: “No person is competent to serve as administrator or administration who, when appointed, is, - First, under age of majority; second, convicted of an infamous crime; third, adjudged by the court to be incompetent to execute the duties of the trust, by reason, of drunkenness, improvidence, or want of understanding or integrity.” In section 64, Prob. Prac. Act, it is provided that “any person interested may contest the petition by filing written opposition thereto on the grounds of incompetency of the applicant.” Under the provisions of those statutes it is clear that letters of administration “must be granted” to applicants in the order prescribed by statute, to the exclusion of others, unless the applicant is disqualified by reason of being a non-resident of this state, or a minor, or having been convicted of an infamous crime, or adjudged by the court to be incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding or integrity. Respondent, John A. Davis, occupies a place precedent to appellant, Henry A. Root, in right to letters of administration upon this estate, by the provisions of statute, and, unless respondent be disqualified by reason of some disability mentioned in the statute, his appointment was properly made by the court and must stand. McGregor v. McGregor, 33 How. Pr. 456. The objections set up by appellant against the appointment of John A. Davis are, - First, that he is a non-resident of this state; second, that he is incompetent to execute the duties of the trust by reason of drunkenness, improvidence, want of understanding and integrity. Evidence was introduced in support of these allegations on the part of Henry A. Root, as well as evidence as to the qualification of John A. Davis, and in his defense against the objections to his appointment. The assignments of error contained in the record relate. - First, to the alleged insufficiency of the evidence to justify the findings of the court against the alleged causes of incompetency; and, secondly, to errors of law alleged to have occurred at the trial, and been excepted to by appellant. These matters will now be considered in the order set forth in the record.

The first ground of error assigned, is, in effect, that the evidence is insufficient to support the finding of the court that respondent was not disqualified, and should not be adjudged incompetent, by reason of drunkenness. Upon a careful review of all the evidence introduced, we find no error in the conclusion reached by the court below upon this question. This question does not turn upon the fact that the applicant is shown to be in the habit of using intoxicating liquor to some extent. However reprehensible that habit may be as regarded from a moral point of view, it is not within the province of the court to deny letters of administration to an applicant on the ground of mere use of intoxicants. The drunkenness contemplated by this statute, undoubtedly, is that excessive, inveterate, and continued use of intoxicants, to such an extent as to render the subject of the habit an unsafe agent to intrust with the care of property or the transaction of business. It is a matter of common knowledge that the appetite for intoxicating liquor takes such strong hold upon some individuals as to become a controlling influence. The appetite strengthens by each successive indulgence. The will force becomestoo feeble to resist the craving of the appetite, indulgence is unrestricted, constant, and excessive. A person so controlled by such an appetite may be said to be abandoned to the habit of drunkenness. The unfortunate effect of this habit is to render the subject of it, not only physically and mentally incompetent to transact business of importance, and preserve property with due care, but usually the subject of this habit becomes indifferent to the most sacred duties, and careless of demands of the highest moment. Such a person may well be adjudged incompetent to execute the duties of the trust involved in the administration of an estate. It is undoubtedly easier to prove the fact, and the disqualifying effect, of drunkenness, than to define the degree of intemperance necessary to produce incompetency. The vital question in the investigation of this objection is whether, or not, the applicant for letters is incompetent by reason of the inveterate use of intoxicants, and not whether he may, or may not, have used the same to some extent. In the case at bar it is admitted by appellant's counsel that the evidence introduced to establish the incapacity of John A. Davis, by reason of drunkenness, is meager. Witnesses introduced in support of that charge testified that John A. Davis drank intoxicating liquor, and some testified that he used the same to considerable extent at times, yet none of these witnesses would undertake to say that John A. Davis was incompetent to transact important business; nor did they testify to other facts from which the court could reasonably draw that conclusion. In defense against this allegation, it was proved, by a number of witnesses on behalf of John A. Davis, that, during his residence in Butte City since the fall of 1885, up to the fall of 1888, he was engaged in the wholesale grocery business at that place, as the senior member of the firm of Davis & Co.; that he was attentive to that business, and conducted it with such care and foresight that he acquired the reputation of being a conservative, successful, and clear-headed business man; and that other business men of that city sought his counsel in reference to business transactions. The testimony introduced on behalf of John A. Davis shows that, since the fall of 1888, when he retired from said wholesale grocery business, he has been engaged in attending to important business matters for the First National Bank of Butte, and also for the deceased, Andrew J. Davis, such as looking after claims owing to said bank, rebuilding the said bank after its destruction in the fall of 1889, and attending to important litigation in Iowa for deceased. The testimony of these witnesses, as to the respondent's habit of using intoxicating liquor, is to the effect that his use of the same was temperate. We think the court properly found upon the proof that the applicant was not incompetent by reason of alleged drunkenness. See Kechele's Case, 1 Tuck. 52.

Improvidence was set up as ground of disqualification of John A. Davis, and it is urged that the court erred in finding that the same was not established by the evidence. In support of this ground of disqualification, our attention is called to two facts shown by the evidence: First, that respondent, at the advanced age of 61 years, is not possessed of property of any considerable value; secondly, that since 1885 he has not supported his wife and minor children. As to the latter fact, the evidence shows that a separation took place between respondent and his wife in...