Ellison's Estate

Opinion by Mr. Chief Justice Sterrett, The facts upon which appellant’s prayers for a citation and relief are grounded are fully set forth in her petition and need not-be repeated. It is stated in the opinion of the court below, that the plea and answer filed by appellees were withdrawn by agreement, and the general demurrer, on which the case was heard and disposed of, was substituted. As the learned judge correctly says: “The facts set out in the petition, being thus accepted as verities, raise the single point whether they place the petitioner in a position to demand relief; ” and then, for the purpose of argument, he assumes “ that the money of the testator was used by the executors for their own profit after his death; that the respondents conoealed from the petitioner the circum-' stance that an effort to charge the executors, of whom one was her trustee, had been abandoned at the earnest s.olicitation of accountants, and that by agreement of the respondents, testimony which, without the consent of all parties, was incompe [322] tent, had been introduced at the audit, that resulted in finding that the testator, in his lifetime, had sold out his business interests to his executors and had loaned them $100,000 of the purchase monejr.” After considering the questions involved, the learned court held, in substance, that by reason of her laches and acquiescence petitioner was not entitled to relief in any form, and her petition was accordingly dismissed. The subject of complaint in the third specification is in finding, as therein recited, that “ the filing of the account and its audit and settlement were fully known at the time by the petitioner, and her acquiescence in the proceedings continued unbroken, for all that appears upon the record, down to April 8, 1893, when she presented this petition for review.” This, as well as the holding complained of in the fourth specification, appears to have been unwarranted. They are both in conflict with averments contained in several paragraphs of the petition. In one of them, after stating that the executors were permitted (contrary to' law) to testify, at the audit, to certain alleged facts relating to the purchase of testator’s business in his lifetime, that she never consented, nor authorized any one to consentfor her, to the admission of said testimony, etc., appellant avers she had no “ knowledge that they (the executors) had so testified until January, 1893.” Again, referring to the same subject, she avers, “ your petitioner was first informed of the facts relating to the settlement of said estate, as herein recited, since the first of January, 1893.” In another paragraph, she avers that, “ no explanation of any kind was given to your petitioner by the said William P. Ellison, her trustee and brother, or by either of said executors (her said brothers) as to the acts being done in the settlement or adjudication of the said estate, but your petitioner was by the willful concealment of the facts from her by the said William P. Ellison, her trustee and brother, defrauded of a large portion of her share of said estate,” etc. In the next paragraph she avers that by the fraudulent acts of said executors she was “prevented from properly protecting her interests in said estate at the audit of the account of the said executors, and was prevented by them from attending the said audit.” We have considered the averments embodied in the petition, [323] and giving to them that weight, as evidence, which they are entitled to under the pleadings, we are of opinion that, upon the case as presented, the appellant is entitled to relief. The assignments of error are sustained. Decree reversed with costs to be paid by the appellees, and record remitted for further proceedings, including leave to the appellees to answer, etc.