The opinion of the court, Mathews, J. absent, was delivered by

The plaintiff, as grand-mother and heir of V. Labadie, claims his estate in the hands of the defendant, and prays he may he enjoined from selling it.

The defendant denied the plaintiff being heir, or having any interest in the estate, averred that he is executor to the will of Dr. Labadie, father of the plaintiff’s alleged grandson, and as such possessed himself of the testator’s estate, and was preparing to sell it, in pursuance of the directions of the will; that Y. Labadie left a half sister on the mother’s side, and a niece, the daughter of another half sister on the maternal side.

The plaintiff had judgment and the defendant appealed.

The record shows the death of Y. Labadie, his father, and mother, there is no evidence of his having left any dependant or collateral relations, as stated in the answer.

The defendant has not shown that the executor of the will was authorised by the Court of Probates. He must, therefore, he considered as a mere stranger, against such the plaintiff must not- necessarily show herself entitled to the whole estate, to demand the surrender of it. It suffices she should show she is heir for a part.

She has shown she is the paternal grand-mother, but she has not shown that the paternal grand-father, nor the maternal grand-father, are dead. It is, therefore, possible, that she is entitled to one-fourth only of the estate, and this suffices to entitle her to recover the whole of it from a stranger.

• We had doubts whether the judge did not err in making the injunction to sell the estate, as the will of the father may be proved, and ordered to be executed, and the executor then be authorised to sell, but we have considered that an act *431inhibited to be done, may become lawful by the happening of a contingency, which renders it necessary and regular.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.