On Motion to Dismiss.
The opinion of the court was delivered by
Howell, J.A motion is made to dismiss this appeal “on the ground that Mrs. Margaret Kellogg, sister of the deceased and one of his residuary legatees, a necessary party to the appeal, lias not been cited to answer said appeal or even made a party appellee herein.”
The judgment appealed from was rendered on an opposition to an account filed by tho executors, sustaining the opposition of Mrs. Echinger, tutrix, to one item and rejecting it as to another. Tho latter item is in favor of said Mrs. Kellogg and her co-legatee, one of tho executors, and it is contended by the appellee that Mrs. Kellogg is a necessary party to tho appeal, while the appellants (the executors) contend that Mrs. Kellogg was not a party to the proceedings in tho opposition in the court below, and can not be made a party appellee. They say she was not a party because, being a legatee, she was not specially notified of the filing of the account and tableau of distribution and the ordinary publication to creditors does not make her a party.
However this may be, it seems clear to us that all the parties who were before the, lower court on the trial of the opposition are before us as, appellants or appellees, and we can dispose of the appeal as to them. How they may be severally affected by our action can only be determined when we come to pass on tho merits. We do not think -the ground urged is sufficient to dismiss the appeal.
Motion refused.