Johnston v. Johnston

Seawell, J.

It is not our purpose to go into a complete analysis of this case, nor do we think it necessary in advance of the trial and upon the hearing of the demurrer to construe all the terms of the wills, which are made a part of the complaint, or to determine their precise legal effect, or their ultimate relation to the succession. In fact, such an attempt might be misleading, as other muniments of title, not appearing in the complaint, are not before -us for discussion. It is sufficient to say that in our opinion the plaintiffs have stated a cause of action, and the present action in which it is asserted is not prematurely brought. There was error, therefore, in dismissing the action.

We see nothing in the pleadings upon which the court below, after acting upon the demurrer and dismissing the action, might predicate his order giving certain rights to Miss Mary L. Johnston to live at the home place, free of cost, and to John T. Johnston to live there without expense to S. C. Johnston, or in any way to restrain S. C. Johnston with regard to his use of the land or require him to enter into the bond for $1,000.00 not to commit or permit waste. The order of the court in this respect cannot be sustained upon the facts as now presented and this must be stricken out. This is not to prejudice the rights of Miss Mary L. Johnston, such as she may have, under the will.

That part of the order declining to sustain the demurrer upon the ground that the complaint states no cause of action is affirmed. The dismissal of the action upon the ground that it has been prematurely brought is reversed.

On defendants’ appeal

Affirmed.

On plaintiffs’ appeal

Modified and affirmed.