Brown v. Kendrick

Atkinson, J. 1. There is no merit in the motion to dismiss the writ of error on the ground that the questions decided by the trial court became moot after rendition of the decision complained of. 2. The petition sought, among other things, to enjoin executors nominated in a will from proceeding to administer an estate in accordance with the provisions of the will while a caveat filed by the petitioner as an heir at law on the ground that the alleged testator was without mental capacity to make a will was pending on appeal. The estate consisted largely of cash and negotiable securities, and the will directed distribution in kind to the legatees, and conferred powers of private sale upon the executors, who were not required to give bond. The executors filed in the court of ordinary a bond such as is required by law of temporary administrators. The petition alleged that it was the intention of the executors to do more than perform the ordinary duties of temporary administrators, that it was their intention to proceed with the administration of the estate in accordance with the will, and that the petitioner’s interest under the will would be a certain amount and a greater interest as an heir at law if the will should bo set aside. Held, that the sworn allegations of the petition were sufficient to allege a cause for injunction to prevent the executors from proceeding with administration of the estate in accordance with the terms of the will; and the trial judge erred in refusing to sanction the petition, and in refusing to issue a rule nisi requiring the defendants to show cause why injunction should not issue. Judgment reversed. All the Justices concur. Houser & Mathews, for plaintiff. A. G. Riley, G. L. Shepard, and Hall, Grice & Bloch, for defendants.