Stewart v. Hurt

EDMONDS, J.

The petitioner in this proceeding seeks a writ of

supersedeas

in connection with a judgment rendered against him as the trustee of a testamentary trust.

The will of Lucius J. Smith named the petitioner as executor and also trustee. He qualified as executor and conducted the administration of the decedent’s estate. In the course of these proceedings certain property was distributed to him as the testamentary trustee. Thereafter beneficiaries of the trust commenced a suit in equity for his removal and also to set aside certain orders by which his actions as trustee were approved and his account settled and allowed. The trial court decided adversely to him. By the judgment he was removed as trustee and Ralph G. Miller was appointed as his successor. The court also vacated and set aside the order and decree settling and allowing the petitioner’s first account as trustee and ordered an accounting

de novo

to be made covering the entire period of the trust. Other orders made during the petitioner’s administration of the trust were “declared null and void as against these plaintiffs”.

It appears that this judgment was signed on November 9th although not entered until December 10, 1936. On December 11th the petitioner filed his notice of appeal from the judgment. The petitioner alleges that on December 9th the court made an order transferring the proceedings for an accounting

de novo

to the probate department and that notice was served upon him that the new accounting was set for

[41]

hearing on December 30th. The petition for a writ of

supersedeas

was filed in this court the previous day and an order to show cause was issued thereon which directed the superior court not to hear or decide any proceedings brought for the enforcement of the judgment pending a further order.

However, the petitioner before making the present application complied with the judgment to the extent of turning over to Miller all of the personal property of the trust estate. He alleges he did this only because he was threatened with proceedings for contempt. Whatever the reason for his compliance the petitioner does not claim that any further proceedings may now be taken against him so far as requiring the delivery of property now in his possession.