Louisa Field v. Simon C. Mathison, Executor, 3 Rob. 38

Garland, J. On the trial of the cause, the two wills of Thomas E. Bowles, mentioned in the case of the Succession of Thomas E. Bowles, ante, p. 33, were given in evidence, and their validity or legal effect was not in any manner attacked, either by the pleadings or evidence.

It is not pretended that these wills, or either of them, have been impeached in any legal manner; and from them, as they now stand, it is clear that Louisa Bowles has no right or interest in the succession of her deceased brother, he having, in express terms, given all his estate, real and personal, to his mother, and sister, the wife of the defendant. As long as these testaments stand, the plaintiff has no right to interfere in the administration of the succession of her brother.

She is a collateral heir only, and the testator had a right to give his property to whom he pleased, so that the rights of his mother were preserved. The presumption of the plaintiff being an heir, is destroyed for the time being, by the will having instituted other persons as the universal legatees, or. legatees by a universal title. Not having any interest in the case, the injunction was, therefore, properly dissolved.

The appellant, Field, insists that, although the injunction may have been properly dissolved as to the plaintiff for want of interest, his appeal ought to be maintained, and he be permitted to assume the place of the plaintiff, and show the propriety and legality of the injunction, though originally no party to it, and although he had given neither bond or security to indemnify the defendant, nor made oath to the facts necessary to obtain it, because he had chosen to join her and claim a part of her alleged rights.

Independent of the objections that might be made to this assumption or transfer of litigious rights, there is one still more formidable as regards the appeal of the intervenor. There has been no judgment either for or against him, on his petition, in the inferior court. He is there still, and cannot, by hanging to the skirts of the plaintiff, get into this court and assert his rights under the protection of one whom we have already excluded. The judgment, so far as it dissolves the injunction, is affirmed, at the costs of the plaintiff without prejudice to any rights which she may have on the estate of Thomas E.

Bowles; and as to the intervenor, Field, as curator of Dorothea Bowles, his ap-' peal is dismissed with costs.