Opinion of the Court by

Although, it is stated in the original and amended petitions that W. O. Burgess was the father of the plaintiff, the fact is also disclosed that he left a will, and that Samuel N. Green was his executor; and if the suggested relationship of the plaintiff to the testator authorized the inference that the plaintiff was his only heir at law, yet it appearing that he left a will, it must also be inferred that he thereby disposed of his estate, and it is not disclosed by any sufficient averment, either that the plaintiff was a devisee under the will, or that the whole estate was not needed to pay debts.

Therefore conceding the right of a distributee to sue the executor and another with whom he may have combined, as alleged in this case, to defraud the estate by a misappropriation of the assets of the estate, upon a sufficient disclosure of the plaintiff’s interest in the estate,^as such an interest was not set forth by either the original or amended petition, the demurrer to the petition was properly sustained.

Wherefore, the judgment is affirmed.