85 W. Va. 700 | W. Va. | 1920
On the 11th day of April, 1918, one James K. Bright died seized of a considerable estate, leaving a will which, omitting the formal parts, is as follows: “1st: After the payment of all my just debts and Imryal expenses I ‘will and-bequeath’ to my wife, Mattie J. Bright, all my property real and personal, to have the full use and benefit of during her natural life. 2nd: At my wife’s death I ‘Will and bequeath’ to my wife’s niece and my namesake ‘Nannie Kyle Callison’ (if she is living at that time) all my property real and personal of every kind and descriptions to have and to hold forever. If the said Nannie Kyle
The defendant Mattie J. Bright filed an answer in this case in which she set up a claim for two thousand dollars against the estate of her husband, insisting that her husband received this amount of money belonging to her, and that the estate should account for it, and asked that an account be taken in this' case, and the same decreed to her. She also asks that her dower in the real estate be assigned in this suit. While her answer is not formally an answer in, the nature of a cross bill it may be treated as such. The court below, however, upon exception, refused -to adjudicate the questions presented by her. In this he was clearly right. The bill filed in this case was solely for the purpose of securing the-aid of a court of equity in the administration of the estate by the executor. The bill is not for the purpose of settling the decedent’s estate, nor is any suggestion made in the bill that there is necessity for resort to a court of equity for that purpose, nor is there any declared intention in the bill of having the real estate disposed
It follows from what we have said that so much of the decree of the circuit court as directs the executor what to do with the estate upon the death of Mattie J. Bright, under the various contingencies or conditions which may exist at that time, will be reversed, and these questions left open to be determined upon the facts found to exist when that event arrives. In all other respects the decree will be affirmed.
Reversed in part. Affirmed in part.