Middleby's Estate

Pee Cubiam,

No error was committed in refusing a commission to take the deposition of the appellant. He was, as the court below correctly said in denying the motion for the commission, a party to the record, and, for the purpose of the estate, within the jurisdiction of the court. Nor was there error in admitting in evidence the record of the proceeding in equity between Gherst, ancillary executor, and Nystrom, for, though the appellant was no party to that proceeding, he had written, on August 10, 1912, to William J. Rourke, Esq., his attorney, as follows : “I should like you to advise Mr. Nystrom of his rights in the matter of the suit brought against him by Mr. Gherst. What I wish to avoid is any breach by him of any temporary injunction or order of the court. I should like you to prepare answer for Nystrom and submit it to me and then with your approval, file it in the case and push the case for trial without any quarter to Gherst who is deserving of no consideration.” In this letter he referred to Nystrom as his agent.

Under the single fact justly found by the court below, the appellant has forfeited all right to continue to act as ancillary executor, and the decree discharging him is affirmed at his costs.