Winsor v. Pettis

Potter, J. The first ground of demurrer is that the complainants have not made a proper case for relief in equity. The second is that there is a plain, full, and adequate remedy at law. We cannot see that there is any remedy at common law, and under the statutes regulating probate jurisdiction there is no adequate remedy; and if there was, there has not been such a commencement of proceedings in the Probate Court as to oust this court of its concurrent jurisdiction; and if jurisdiction had been taken for the purpose of investigating the fraud, this court might then proceed further, if necessary, in the settlement of the estate. The third objection is multifariousness. We do not consider this a valid ground for dismissing the bill. Parties must not combine distinct matters in one suit; but in the present case, although the deeds are to three different parties, the grantor was the same in all, and the ground of relief is undue influence over a weak mind, and a combination between the defendants in exercising that influence. We think they can well be investigated together, and that in such a case much of the evidence may apply to all the defendants. And we think that the administratrix is sufficiently made a party to the bill, and that the charges of fraud and undue influence are sufficiently stated. The demurrers are overruled on all points except as to numbering interrogatories. In regard to interrogatories, our rules adopt the Rules of the English Chancery as far as applicable, and especially so far as the same may be adopted by the United States Supreme Court. *516 By the English Buies of August 26,1841, interrogatories were required to be numbered ; and this was further provided for by the Buies of August 7, 1852, Bule 15, which is retained in the Consolidated Orders of 1860, Order 11, and the Bule has been adopted by the Supreme Court. United States Buies in Equity, Bule 41. Decree giving leave to amend by numbering the interrogatories and overruling the demurrers on other points.