Armour & Company's Appeal From Probate

BOOTH, J.

The action is an appeal by a creditor of an incompetent person from an order of a probate court authorising and empowering the conservator of such incapable person to file a voluntary petition in bankruptcy in behalf of his ward.

It is conceded that after the above order was made the conservator pursuant thereto filed such petition and that thereafter the plaintiff by proceedings before the United States District Court raised substantially the same questions of law as are raised by the present appeal. It is also conceded that such questions were adjudicated by the United States court adversely to the claim of the plaintiff, and that the bankruptcy court has since taken charge of all the assets, formerly in the conservator’s hands, has reduced the estate to cash and distributed the same among the creditors of the incompetent, including the plaintiff.

It is the claim of the defendant that by this procedure any-question raised by the appeal has become moot and that no judgment which would be effective could be rendered in the premises. This contention overlooks the main subject matter of the controversy which is the legal correctness of the probate decree appealed from and the pursuant conduct of the conserva tor. If the order of the probate court is void there will still remain a substantial question involving the liability of the fiduciary to legally act for the estate entrusted to him. Without deciding this controversy it is nevertheless evident that the question is or may be far from moot.

In view of the foregoing the motion to erase the appeal is denied.