Lichtenberg

This action was commenced to declare a trust in favor of plaintiff and to enforce an accounting thereof.

In the court below plaintiff prevailed and after accounting had it was found that a large sum of money was due to the plaintiff and judgment entered accordingly. The defendant appeals from said judgment and urges that under the facts as shown no judgment at all should have been rendered against him. Plaintiff appeals and contends that under the facts found by the trial court, as a matter of law, the judgment should be for a much greater amount.

The basis of the action and the theory upon which it was tried embrace fraud and concealment on the part of an executor with reference to the funds of the estate of his testator. It therefore becomes necessary that we review, in some detail, the facts of the controversy.

Plaintiff and defendant are brother and sister, and, as far as the record discloses, are the only children of Mary A. Burdell, deceased. In order to avoid a possible confusion of names we will refer to Mary A. Burdell hereafter as the mother. The mother died some time in the year 1900, and at the time of her death she was survived by her husband, Galen Burdell, and…