To compel the dismissal of an appeal from an order of tbe Probate Court disallowing the probate of an alleged will.

Order to show cause denied November 20, 1894.

Relator and Prances E. Hawley' are tbe only heirs of Samuel S. Sabin, who died leaving an instrument purporting to be bis last will, in which certain bequests were made to relator and said Prances E. Hawley, and upon tbe happening of a certain contingency, to Clare ’W. and Harry G. Hawley, minor children, of said Prances E. Relator petitioned for tbe probate of said instrument. Prances E. was advised that tbe instrument was void upon its face and acting thereon, offered its probate, and, relator consenting, an order was made disallowing tbe instrument.

Subsequently relator produced a prior will more favorable to himself, of tbe existence of which Frances E. was ignorant, and presented tbe same for probate. Thereupon Prances E., on behalf of herself and her two children appealed to tbe Circuit Court, from tbe order of disallowance.

Relator moved tbe Circuit Court to dismiss tbe appeal because (1) the instrument bad been disallowed at tbe instance of Prances E., and (2) that Clare W. and Harry G. Hawley were minors* and no next friend or guardian bad been appointed before appeal taken. On tbe application to dismiss, a petition was filed asking for the appointment of a next friend, and in tbe order denying tbe motion tbe court made tbe appointment.