Morgan

This is an appeal, from a judgment rendered in the defendant’s favor after her demurrer to the fourth amended complaint of the plaintiffs had been sustained.

The defendant is the widow of one G. M. Asher, deceased, and the executrix of his last will. She is also the sole distributee of his estate under the decree of distribution made in the course of the probate of the decedent’s said will and estate. The plaintiffs are relations of the said deceased in various degrees, the plaintiffs, Mrs. Martha Morgan and Mrs. T. S. Gibson, being his sisters, Mrs. Cynthia Hall and Mrs. Sarah Wilsey, his nieces, Tyrus Howard his nephew, and Mrs. Nancy Asher the wife of his brother, A. B. Asher. This action was instituted by these plaintiffs to have it adjudged that the said defendant holds certain money and other personal property, which was the separate property of her deceased husband, as the trustee of the plaintiffs, and that the same be applied to the payment of certain legacies to said plaintiffs and to certain other of his heirs and devisees under the terms of his said will.

The averments of the plaintiffs’ fourth amended complaint set forth the facts upon which the plaintiffs predicate…

I concur in the conclusion of Mr. Justice Richards, and particularly in that portion of the opinion holding that the defendant was at the time of the death of her husband a trustee of plaintiffs, and that she now holds the property of the estate in trust. I am inclined to hold to the opinion that all the personal property of the estate was never administered upon. The executrix of the estate was interested in the property of the estate. She chose to present to the court for administration one piece of property only. In her final account and petition for distribution she stated and under oath verified: “The entire estate of said deceased now in the hands of said executrix consists of the following” (then follows a description of the piece of real estate, the only property inventoried and the only property mentioned anywhere in any of the proceedings of the estate). And in this same final account and petition she alleges and verifies: “That the only property belonging to said deceased at the time of his death was the home place, being community property [and again describing the six thousand five hundred dollar piece of realty, the only property mentioned in the estate], . . . and…