Nolan v. Taft ( 1934 )

OPINION

By HORNBECK, PJ.

Upon the record one question.upon which there can be any difference of opinion is presented, namely, was the appeal of Loretta M. Nolan, executrix, to the Common Pleas Court in the interest of her trust?

Counsel for the parties in their briefs cite and comment upon many cases in Ohio.

It is obvious that Loretta M. Nolan will be advantaged in a pecuniary way if successful on her appeal. This alone would not preclude all possibility that the appeal is in the interest of her trust. The two conditions might obtain in a given situation. They do not appear here.

The most that could be said to support the claim of plaintiff in error is that the estate of Mary L. Taft, deceased, would not be benefitted nor would it suffer should the plaintiff in error sustain her contention respecting the proper construction of the will. This is not enough under the terms of §10501-59, GC. It must affirmatively appear that the appeal is prosecuted in the interest of the trust. In no view of the record in this case does this appear.

This court in Wilson v Westwater, Admr., 14 Abs 417, considered and discussed practically all of the authorities cited by counsel in the instant case and had there presented all the questions which could be urged. We refer counsel to this case.

The judgment of the Common Pleas Court must, therefore, be affirmed.

BARNES, J, concurs. KUNKLE, J, not participating.