Duggan v. Harrison

Lumpkin, Justice. The facts of this case appear in the official report. The only .question really presented for our determination is, whether or not Mrs. Duggan was entitled to maintain, in the court of ordinary, a petition for a citation against "W. T. Harrison as executor, and Saleta Harrison as executrix, the purpose of which was to require them to make a return of the rents, issues and profits of the land devised [741] to herself . and the other four children by their father, W. D. Harrison. The terms of tire will, so far as it relates to this land, are peculiar, and it is quite a difficult matter to determine what is the precise interest of Mrs. Duggan, either in the land itself or in its income during the period whilst she was absent from the premises and the other devisees remained upon, used and enjoyed the property in common. We are quite certain, however, she has no right to demand of W. T. Harrison and Saleta Harrison, in their representative capacity, an accounting as to the income of the land during the time she was absent. The executor and executrix, by living upon the land and permitting the other devisees to do so, assented to the legacy, in so far as the income was concerned; and all of these parties accepted the legacy, to this extent, by thus enjoying its fruits. If Mrs. Duggan was entitled to any of the rents and profits which accrued during the period of her voluntary absence, her claim is surely not against the estate of the testator, but is a claim against the other four in their individual capacities. We are not now called upon to decide whether or not, as individuals, they are liable to her; and accordingly, we malee no ruling whatever upon that question. The effect of the order passed by the trial judge before whom the case came on for a hearing upon an appeal from the court of ordinary was to dismiss the plaintiff’s application, and the judgment rendered was unquestionably right. We have not, however, undertaken to decide as to the correctness of the construction placed by the judge upon the will under which this litigation arose. Judgment affirmed.