dissenting. While I agree with the conclusion of the majority of . the court as to the *73correctness of the trial court’s judgment granting interlocutory injunction, it is my view that the death of the ward made it impossible for any relief to be granted in the trial court, and rendered all questions moot in this court. See Elliott v. Cline, 184 Ga. 393 (191 SE 372).
Prior to the filing of the appellee’s complaint as guardian of Mary Alice Tingle, the guardianship had been terminated by order finding the ward competent, after hearing by a commission. The guardian appealed from that order.
The purpose of the appointment of a guardian is to safeguard the person and property of an incompetent. While the trial of an appeal from that order is a de novo proceeding, it is my view that the alleged incompetent has the same right to be present and participate in the appeal trial as she does in the original proceeding, where she is personally examined by a commission. Her death would thus make it impossible for any trial to be had on the appeal.
In 44 CJS 153, Insane Persons, § 55 (d), it is said: "The death of the ward is a bar to a proceeding to supersede the commission on the ground of his recovery prior to his death, and if such proceeding has been commenced before his death, it abates on that event.”
In Kasserman v. Sams, 120 Fla. 47 (162 S 141), the Supreme Court of Florida considered an appeal from an order granting a rehearing on an order finding that Mrs. Lillie M. Kasserman had been restored to sanity, during the pendency of which appeal Mrs. Kasserman died. The court held: "The mental status of Lillie M. Kasserman is the subject matter of the suit and while she is not a necessary party to the suit, her death abates the proceedings because there is no longer any subject matter before the Court to be disposed of. Therefore all pending questions at the date of the death of Lillie M. Kasserman become moot both in this court and in the court below.”
If the appeal from the finding of competency cannot be *74tried, then the finding of competency must stand. An appeal suspends a judgment, but does not vacate it. Code § 6-502. A guardian has no right to represent the estate of an intestate ward (Code § 49-316, as amended by Ga. L. 1958, p. 377) where the guardianship was terminated prior to the ward’s death. Morgan v. Wood, 69 Ga. 599, 602; Weekes v. Fuller, 218 Ga. 515, 517 (128 SE2d 715).
The right of the guardian to maintain the injunctive action depends on a judgment in her favor on the appeal from the finding that her ward was competent. It is my opinion that the death of the ward abated the appeal, and made it impossible for the guardian to prosecute the injunctive action.
A dismissal of the injunctive action would not prejudice the right of any person at interest to institute an action concerning the estate of Mary Alice Tingle. A judgment of the court of ordinary finding that a person has been restored to competency is not conclusive evidence that the person had mental capacity to execute a deed or other instrument. Slaughter v. Heath, 127 Ga. 747 (5) (57 SE 69, 27 LRA (NS)).
I would dismiss the appeal in this court as moot, and I dissent from the judgment of affirmance.
I am authorized to state that Mr. Justice Undercofler concurs in this dissent.