dissenting:
In my opinion the judgment of the Appellate Court should be affirmed. Whatever may be the general equity jurisdiction of the Circuit Court in relation to the appointment of trustees and the administration of trusts, in this case such jurisdiction was not involved. The Circuit Court was exercising a mere statutory jurisdiction by appeal from the County Court. That jurisdiction, in my opinion, extended merely to a trial de novo of the question which had already been tried by the County Court, viz: whether Mary T. Snyder was a distracted person, and the embodying of its finding on that question in a proper order or judgment, and such order or judgment being entered, all the purposes of the appeal were accomplished, and the matter should then have been remanded to the County Court for further proceedings. Everything beyond this constituted an exercise by the Circuit Court of an original rather than an appellate jurisdiction.
When the appeal was taken the County Court had not appointed a conservator, and, as we may presume, had not reached that stage in the proceeding. The appeal brought up for review, or for trial de novo, merely the matter which had already been passed upon by the County Court, and could not have the effect of bringing up, by anticipation, such orders or proceedings as that court might enter or take as a proper sequence of the judgment appealed from. If the Circuit Court, as a part of its appellate jurisdiction, could appoint a conservator, it might, upon the same principle, have gone further, and retained the entire proceeding in its own hands for all purposes of administration. That its doing that would have been improper seems to be conceded. Upon the same principle it should be held that, as soon as it had tried the question of the sanity of the person alleged to be distracted and found her to be insane, and embodied such finding in a proper judgment, the matter should have been at once remanded to the County Court for the appointment of a conservator and the administration through him of the estate of the person so adjudged to be distracted.
Magruder, C. J.: I concur in the views expressed by Mr. Justice Bailey.