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181 Mass. 541

Wirth v. Wirth

Massachusetts Supreme Judicial Court · decided 1902-05-23

Petition, filed June 21, 1901, in the Probate Court for the County of Suffolk for the removal of Henry K. Wirth as administrator with the will annexed of the estate of Jacob Wirth. The respondent demurred to the petition. In the Probate Court McKim, J. made the following decree: “Demurrer sustained, but the petitioners may file specifications upon the allegations affecting the conduct of the administrator since his appointment.” The petitioners appealed.

Decided 1902-05-23

Hammond, J.

¶1It may be assumed that the decree of the Probate Court of September 27,1901, required the petitioners to file specifications within a reasonable time and therefore was subject to appeal. We do not however find it necessary to decide the various questions argued before us, because we think that this appeal should be dismissed for reasons not affecting the merits of the controversy.

¶2At the hearing before us it appeared that since making their appeal the petitioners have filed in the Probate Court specifications in accordance with the decree from which they appealed. This they had a right to do; but, having done so, the order is no longer a grievance, and to pass upon it is to pass upon a moot question. Under these circumstances the appeal to the full court should be dismissed and the case remitted to the Supreme Judicial Court for the County of Suffolk, with directions to enter a decree dismissing the appeal from the decree of the Probate Court and to remit the case to that. court for further proceedings.

¶3So ordered.

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