Hewitt v. Hewitt ( 1889 )

Landon, J.

Upon' the facts stated in the complaint, the plaintiffs have no •case in equity. They state facts showing a clear title in themselves, as executors and trustees, to the personal property of their testator, both in this state and in the state of Arkansas. They do allege that the defendant claims that the testator died a resident of the state of Arkansas, and that therefore she claims, by the laws of that state, that she is entitled to one-half of his personal property there situate. The plaintiffs allege no doubt in regard to the law of ■either state. They expressly allege that the testator’s residence and domicile were in this state at the time of his death, and the demurrer admits the facts ■alleged. The fact that the defendant claims that the testator was a resident of the state of Arkansas is immaterial. Her claim gives no advantage, and in no way impairs the rights of the plaintiffs. If she should be sued by the plaintiffs for the $500 of the testator’s estate which she obtained in Arkansas, and brought into this state, and should assert, in defense, that the testator resided in that state at the time of his death, the plaintiffs need only to prove the facts which they allege in this complaint, and which the demurrer admits, in order to establish his residence and domicile here. On their own showing, they are in no doubt or danger. They desire to tender the issue of domicile in this action, but the defendant is not legally bound to accept it. If she has a defense to a cause of action for conversion, it is her right to reserve it until the action be brought, and then she can resort to it or not at her option. The plaintiffs can invite the issue by bringing such an action. As all the questions raised depend upon that issue of fact, and as it rests with the defendant, and not with the plaintiffs, to prevent it, and as an action at law will suffice to determine it, the complaint states no cause of action. Interlocutory judgment reversed, with costs, and demurrer allowed, with costs. All concur.