Purinton

This action is in equity and was brought by respondent, who, it is conceded is a pretermitted heir of Adeline Potter, to recover her share of the estate of her ancestor which was distributed to Fred Fillmore Schaffer. Schaffer died before this action was brought and respondent named as defendants appellant Dyson, individually and as executor of Schaffer’s will, and Carrie Sims, as special administratrix of Schaffer’s estate. Respondent recovered judgment against the defendants named, and Dyson appealed.

Adeline Potter died testate in 1932, leaving as her only heirs Thomas G. Purinton, a son, and respondent, who is the daughter of a deceased son. By her will Mrs. Potter bequeathed $100 to her son Thomas Purinton and $50 to appellant Dyson. The residue of her estate was left to Fred Fillmore Schaffer, who was also named as executor.

Schaffer presented the will for probate by a petition in which he stated under oath that the only heir at law of testatrix so far as known to him was deceased’s son, Thomas Purinton. The will was admitted to probate and Schaffer was *324 appointed executor. He qualified as executor and thereafter filed his verified first and final account and petition…