Smith v. Allen

Per Curiam.

The respondent, Walter B. Allen, is the executor of the estate of James Deaver, deceased. The appellant, Elaine Smith, is the guardian of Earl Ramsey Deaver, a minor heir and devisee of James Deaver. In September, 1925, the appellant petitioned the court in which the probate proceedings were pending for the removal of the respondent as such executor, charging that, in the execution of his trust, he had been guilty of making an unlawful personal use of the property of the estate, that he had disposed of its property without warrant or authority of law to the detriment of the estate, and had otherwise misappropriated and misused its property. Issue was taken on the allegations of the petition, and a trial was had which resulted in a denial of the application.

The appeal, which is taken from the judgment of the trial court, presents wholly questions of fact. The evidence is decidedly conflicting. The case presents, in a rather unusual degree, that situation where an opportunity to observe the conduct and demeanor of the witnesses while testifying is all-important in determining the truth of their testimony. The trial court had this opportunity which we have not, and we cannot say, after a study of the evidence, that it did not reach a just conclusion. Because of this situation, a review of the evidence would be purposeless. Affirmed.