Starkweather v. Williams

41 A. 1003, 21 R.I. 55, 1898 R.I. LEXIS 20

Opinion

Matteson, C. J.

(1) We do not think that the remedy provided by Gen. Laws R. I. cap. 209, § 3 5, is exclusive of the right to a discovery in equity, and therefore the demurrers incorporated in the answer cannot be sustained on that ground. We think, however, that the bill, in so far as it is a bill for discovery, is clearly demurrable in that it waives the oath to the answers. Harrington v. Harrington, 15 R. I. 341; McCulla v. Beadleston, 17 R. I. 20 (26).

Unless the bill can be regarded as a bill for an account, and we do not think it can, we think it is bad for want of equity. It prays, not for an account, but for the delivery to the complainant of specific property when ascertained, and it does not appear that such specific property consists of relics or heirlooms or property of that specific nature, which might, perhaps, create an equity. Neither has the bill any allegation that the disclosure sought is necessary to enable the complainant to file his inventory with the Court of Probate, which might also create an equity.

Demurrer sustained.