Burgess v. Owens'

Opinion of the Court by

Judge Hardin:

Although, it is stated in the original and amended petitions that W. O. Burgess was the father of the plaintiff, the fact is also disclosed that he left a will, and that Samuel N. Green was his executor; and if the suggested relationship of the plaintiff to the testator authorized the inference that the plaintiff was his only heir at law, yet it appearing that he left a will, it must also be inferred that he thereby disposed of his estate, and it is not disclosed by any sufficient averment, either that the plaintiff was a devisee under the will, or that the whole estate was not needed to pay debts.

Therefore conceding the right of a distributee to sue the executor and another with whom he may have combined, as alleged in this case, to defraud the estate by a misappropriation of the assets of the estate, upon a sufficient disclosure of the plaintiff’s interest in the estate,^as such an interest was not set forth by either the original or amended petition, the demurrer to the petition was properly sustained.

Wherefore, the judgment is affirmed.