Solomon v. Tarver

Blandford, Justice.

In this case, Mrs. Tarver filed a bill against Mrs. Solomon, who was the executrix of William Solomon, her husband, for discovery, inj unction and for a receiver. The bill is very meager in its allegations, but does allege that the inventory of this estate, as returned by the appraisers, showed that at the time Mrs. Solomon took charge of it, it was worth some $100,000; and that by the tax returns of Mrs. Solomon, it is now worth only $24,000. It also sets forth a copy of the will of Mr. Solomon. By that will he gave to his wife all of his property during her life or widowhood, and provided that, at her death or marriage, it should be divided between the complainant in this bill, Mrs. Tarver, Mrs. French, and his son, Charlton Smith Solomon. It is further provided that his executrix (his wife being the only one named as executrix, and no one else having qualified as executor), should have a right to sell any of this property, real or personal, at public or private sale, without any order of the court for that purpose; and that the legatees mentioned should have no right to interfere or complain. But the will does not dispense with the necessity of the executrix’s making returns to the ordinary, by any provisions therein, or any implication we can draw from it. The executrix is enjoined by the will to manage the property for the best interests of the testator’s children named as his legatees.

Mrs. Tarver was one of the legatees, having an interest in this property after the death of her mother, and she had a right to know the status of the estate in the hands of the executrix; and if the executrix was mismanaging the estate to her detriment, she would have a right to have a receiver appointed to take charge of it and manage it. The court below only granted an injunction.

This bill was demurred to specially by Mrs. Solomon on the ground that Charlton Smith Solomon and Mrs. French were not parties, and upon the further ground that there was no equity in the bill. The court overruled the demurrer, and that is the ground of error alleged. While we think the bill was a very meager one, and that, from the facts set forth in the affidavits to sustain it, stronger allegations could have been made, yet we think there is equity in the bill, and that there is sufficient alleged to show that the executrix is mismanaging the estate. That an estate ran down from $100,000 to $24,000, without more, would seem to indicate some mismanagement on the part of those in charge of it. Hence we think the court did right to overrule the demurrer and retain this bill to the hearing.

Judgment affirmed.