Pease v. Pease , 49 Mass. 395 ( 1844 )

Hubbard, J.

The court are of opinion that the demurrer to this bill ought to be sustained. The bill seeks a discovery as to the conveyance of certain real estate, alleged to have been conveyed to the defendants by means of their unjust and unfair practices upon the intestate. But the plaintiff does not set out, in her bill, that she has obtained license to sell said real estate for the payment of the debts of the deceased, nor does it even appear that the estate is needed for that purpose. She, consequently, can maintain no action for the recovery thereof; (Rev. Sts. c. 71, <§><§> 12, 13;) and she has no right to enter upon the estate, nor has she any interest in or control over it, as such administratrix.

The plaintiff is not a trustee in regard to the real estate of the deceased, and no action could be maintained by her in regard to it, in aid of which, treating the present suit as a bill of discovery, the discovery, if made, could avail her; so that the case is not sustained by the principle maintained in Holland v. Cruft, 20 Pick. 321.

If there were' no other objections to the bill, we should think the demurrer ought not to be sustained, as being too broad. It should have been confined to that part of the bill which seeks a discovery as to the real estate. But we think the demurrer is good to the whole bill, as a bill of discovery merely, because it does not aver that any suit at law has been brought, or is intended to be brought, to the support or defence of which the discovery that is sought is material. Story Eq. PI. §§ 318, 319. Fiske v. Slack, 21 Pick. 361.

Again ; treating it as a bill for relief as well as discovery, it is bad, because no relief is prayed for in the bill. But we think the bill may be amended by a suitable prayer for relief, setting out more specifically the claims of the plaintiff", as it respects the personal estate. See Gibbens v. Peeler, 8 Pick. 254. Or, if the plaintiff chooses to pursue her remedy at law, in regard to the personal estate, she can then amend and show such fact in her amended bill.

Demurrer sustained