
    McCray, executrix, v. Harrison, administratrix.
   Eish, C. J.

Elizabeth McCray, as executrix of the will of Seleta L. Harri-

son, brought an action, returnable to the September term, 1909, of Hancock superior court, against Maggie L. Harrison as administratrix of the estate of W. T. Harrison. The substance of the petition was as follows: The plaintiff’s testatrix was a legatee under the will of her father, W. D. Harrison. W. T. Harrison, her brother, qualified and acted as sole executor of such will until January, 1900. Under a decree rendered in October, 1901, in two suits for an accounting and settlement, -brought against W. T. Harrison, respectively by two of the sisters of the plaintiff’s testatrix, in the superior court of Washington county, which were consolidated and tried together, it was in effect adjudged that such testatrix as one of the five legatees under the will of her father, W. D. Harrison, was entitled to one fifth of the proceeds of the sale of certain lands in Johnson county, which had been sold by W. T. Harrison by agreement of such legatees, and that W. T. Harrison had failed, on demand, to account to plaintiff’s testatrix for her share in such proceeds. The petition alleged that the effect of such decree “was to wind up finally the affairs of the estate of W. D. Harrison, the only duty required of W. T. Harrison being the duty of turning over the proceeds of the sale of said Johnson county lands to each of the heirs at láw, and this being a duty which he owed individually, he having held it up to then, claiming the right to hold the same under said will.” The petition further set forth that W. T. Harrison, the defendant’s intestate, was indebted to the plaintiff’s testatrix a given sum as her portion of the rentals of the land belonging to the legatees of her father’s estate for the years 1901 and 1902, together with her portion of the interest on such rentals from 1902. Held, that, under the allegations of the petition, W. T. Harrison, the defendant’s intestate did not, after the decree against him in Washington superior court in his individual capacity, as shown by a copy of such decree attached as an exhibit to the petition, sustain a fiduciary relation towards thq plaintiff’s testatrix, and therefore the rule as to the limitation of actions in eases of subsisting trusts was not applicable; and under the ordinary statute of limitations, it not appearing that the case set forth fell within any of the exceptions thereto, the plaintiff’s cause of action was barred, and the court did not err in sustaining a demurrer to the petition on that ground. Judgment affirmed.

June 15, 1911.

Complaint. Before Judge Lewis. Hancock superior court. March, 29, 1910.

R. L. Merritt, for plaintiff.

W. H. Burwell and R. H. Lewis, for defendant.

All the Justices concur.  