The opinion
MR. JUSTICE ANDERSON:
(dissenting).
I do not propose to burden the reader with a mass of material in an attempt to offset that contained in the majority opinion. Suffice to say that the reasons given by the named executor of the Minder will, for the delay in filing a petition for letters, are ones which were controverted by testimony offered by those opposing his views.
Granting that the evidence in contravention of that given by Attorney Gray, the named executor, is not as lengthy as his, none the less it is present and is sufficient to give rise to the doubt which is contemplated for resolve by the statute. R. C. M. 1947, sec. 91-804.
This court has repeatedly held that where the evidence is conflicting the decision of the trial court, if supported by substantial evidence, will be affirmed.
Hon. W. W. Lessley, district judge presiding, had full opportunity to view the witnesses and to observe their demeanor and judge their veracity. It could well be that had I been sitting as the trial judge I may have reached a different conclusion than that reached by Judge Lessley. However I was not so situated and I do not wish to substitute myself in the position of a court of first impression or to substitute my judgment for that rendered by the judge thereof.
I cannot agree that the ethics of the lawyers representing the Minder heirs is open to attack for the reason that the named executor, a lawyer, is no more immune to an attack by a lawyer *31 than would be an executor that might be a farmer or laborer. In fact if the latter were being attacked under the same circumstances, this court should be more inclined to offer its helping hand because the farmer or the laborer would be less likely to be familiar with the technical procedure of probate law. No one sought a change of lawyers. It was an executor, not a lawyer, who was being challenged.
The judgment and order of the district court should be affirmed.