It will be observed that this suit was, and is, one against W.H. Underhill as an individual and not as administrator. The relator does not base her claim on the statute of descent and distribution or upon the provisions of a will but under a claim of right arising out of fiduciary relations. That such relation grew out of the settlement of an estate is only incidental; therefore, that the circuit court had jurisdiction.

The order here under review did not dismiss the bill of complaint but denied decree on bill and answer.

I think the bill contains sufficient allegations to show that at the time of the transaction the position of the respondent was such that he could not disregard the interest of his brother and sister, and without their knowledge or consent, make a secret deal concerning the property involved except as the fiduciary of his brother and sister. It is alleged, in effect, that by the joint action of the three, respondent was placed in a position of trust and confidence and in a position which gave him an advantage in dealing with the widow of the deceased.

If the allegations of the bill be true and he did so deal, then the benefits of the deal should in equity and good conscience enure to the benefit of all three.

The answer presents issues of fact which may only be determined by the taking of testimony.

The order appealed from requires the parties to proceed to trial on the issues made.

I have written these views because it appears from the briefs of both parties that they construe the order of the chancellor as holding that plaintiff has stated no case on which she can recover. Such holding is not reflected by the record.

Certiorari is denied.

TERRELL, CHAPMAN and ADAMS, JJ., concur. *Page 439