Jacoby's Estate

Opinion by

Mb. Justice Mitchell,

This case presents the same erroneous practice as Morton’s Estate, ante, p. 269, and the decree must be reversed for the reasons there given.

It appears however that in this case the executors had filed an account, and an exception to it by Mrs. Downs raised the precise question now involved in this appeal, but on suggestion by the court the exception was withdrawn and a petition presented by Mrs. Downs for an order on the trustee to pay certain income to her. On this petition the decree now appealed from was made. The proper practice would have been to decide the question on the exception to the account. In the present form there was no case before the court. The decree therefore is reversed and the petition directed to be dismissed, but with leave to reinstate the exceptions and for further proceedings as indicated in this opinion.