
    No. 580
    ADAMS, Admr. v. ADAMS
    Ohio Appeals, 7th Dist., Mahoning Co
    Oct. 29, 1924.
    85. APPEALS—Applicatoin by appellant to dismiss appeal will usually be granted unless manifestly prejudicial to appellee.
    Attorneys—Kennedy, Manchester, Conroy & ■Ford, Youngstown, for Adams, Admr.; Jas. Kennedy, Nicholson & Warnoek, Youngstown, Gillmer, Gillmer, 'Stephens & Patchin, War'ren, for Adams, defendants.
   FARR, J.

Original action in the Common Pleas for construction of the will of Wm. Adams, Sr., deceased. An appeal was perfected in the Court of Appeals, and later the appellant applied to dismiss the appeal. In the action below Mary and Carrie Adams were cross-petitioners and they now objected to the dismissal of the appeal, contending that it would be manifestly prejudicial to their rights. The cross-petition filed by them alleged that it was the clear intent of Adams Sr. that the income from his trust estate should be distributed equally to the families of his four sons, and that contrary to that intent the trustee had been distributing the income to the families of only two sons, and that therefore the trustee should be removed. The Coprt of Appeals held:

The rule is that an appellant will be permitted to withdraw or dismiss his appeal, although not as a matter of right, and the application to dismiss will be granted notwithstanding the objection of the appellee, unless it is apparent that that prejudice will result to the latter.

In this cross-petition the matters set forth are all adminisraive in character. They relate to the distribution of the fund, not to the construction of the will, and that is a matter to be conrtolled by exceptions to the settlement account, and as to who will administer the 'trust is a matter to be determined in another proceédifig. Application to dismiss is granted.  