The Providence news. (Providence [R.I.]) 1891-1906, 1902-06-10
0VERRULED.
Defendants Demurrer In Case
Of Alice German vs.. Ed. McCabe

The defendants demurrer I'm the equity
Cabe has been overruled by the appel
late division of the supreme court The
object OF the bill filed was TO obtain
the cancellation OF a release under seal
purporting TO have been executed by the
complainant, purporting 10 release the
respondent as executor of the last will
and testament of the late Dennis Cor
man from all claims which the complain
ant as residuary legatee under said will
might otherwise have against respondent
as executor. Constructive fraud was the
ground upon which the cancellation of
the release was asked. II being charged
that the conduct OF the respondent
amounted TO such and also because the
release was without consideration.
Respondent demurred to the bill on
the grounds that the complainant had
an adequate remedy at law: that the
estate OF said Dennis German and all
matters connected with the administra-
ton and settlement thereof by the re-
spondent as executor is now pending
In the municipal court of the city of
Providence, and that its settlement be-
Ing thus pending this appellate diyis-
Ion OF the supreme court would not take
jurisdiction over any matters in com
plainants bfil; and as a further ground
that the bill sets forth no reason for the
interference OF court of equity
Judge Tillinghast writes the opinion
OF the court and expresses himself I'm
part as follows: I'VE think the demur-
rer should be overruled. The facts set out
In the bill show such a relation between
the complainant and respondent as
makes the transaction which the bill
impeaches clearly fall within the spe-
tal tkrfGI tOffl -
IL sets out that tho complainant is a
woman OF advanced years. weak IN
body. unable to read and write. and
ignorant and inexperienced In all mat
ters of business and the management
OF property, and since the death of her
husband the respondent as the execu-
tor or the will Of her husband, and as
her agent In the management OF all her
property. has been her confidential ad-
wiser in all matters relating to her prop-
erty and that she has at all times i'm
plicitly relied upon and followed his ad-
vice and direction I'm her business af-
fairs.
The bill also sets out that to the best
knowledge and belief OF the complain
ant she never executed the release which
she seeks TO have cancelled, but that
III she did execute the same. she did so
without understanding the contents and
legal effect thereof, and without intend
Ing In any way TO release the respond
ent from his obligations TO her. but that
she did so by the advice and direction
OF the respondent and wholly because
OF her implicit confidence and trust In
his honesty and good intent and relying
entirely thereon
As these statements must be taken as
true for the purposes OF the demurrer
Judge Tillinghast declares the opinion
OF the court that a case OF construct
i've fraud is made out The mere fact
that the respondent is executor OF said
will and that his account is pending the
appellate court says cannot under the
circumstances preclude the complainant
from the relief sought. The case az
bar is distinguished from Blake VS. But
ler In which actual fraud was set up