#### THE NORTHWESTERN BANK, Executor of the Estate of NANCY SMITH DAVIS, Deceased v. NORTH CAROLINA NATIONAL BANK

No. 7028SC259

(Filed 27 May 1970)

Appeal and Error § 9— moot question — appeal of bank acting in capacity of executor

The question presented by the appeal of plaintiff bank acting as executor of an estate is held rendered moot where Court of Appeals in another case had affirmed an order setting aside plaintiff’s letters testamentary.

Appeal by plaintiff from Grist, J., 8 December 1969 Session of BunCombe County Superior Court.

Both parties claim to represent the estate of the late Nancy Smith Davis. Plaintiff purports to act pursuant to letters testamentary issued by the Clerk of Buncombe County Superior Court. Defendant purports to act pursuant to letters of administration issued by the Clerk of the Iredell County Superior Court.

Plaintiff instituted this action in Buncombe County Superior Court on 13 November 1969 seeking injunctive relief from an order of the Iredell Clerk which ordered plaintiff to deliver to defendant all assets of the late Nancy Smith Davis in its possession. In its complaint, plaintiff alleged that the Buncombe County Clerk had entered an order denying a motion by defendant and others to vacate plaintiff’s letters testamentary. It was also alleged that this order was based upon the Clerk’s supported findings that he had conclusive jurisdiction over the estate as ex officio judge of probate for Buncombe County. Plaintiff prayed that defendant be enjoined from executing the order of the Iredell County Clerk “until such time as the Order of the Clerk of Superior Court of Buncombe *334County becomes final for lack of appeal, or until the same is modified, affirmed or reversed upon appeal; . .

Defendant's demurrer to plaintiff’s complaint was sustained on 18 December 1969 and plaintiff appealed. •

Van Winkle, Buck, Wall, Starnes & Hyde by Herbert L. Hyde for plaintiff appellant.

Jordan, Wright, Nichols, Caffrey & Hill by Welch Jordan and Edward L. Murrelle for defendant appellee.

Graham, J.

On 18 December 1969, the same date on which the judgment here appealed from was entered, Judge Grist entered an order reversing the order of the Buncombe County Clerk' and vacating, annulling, and setting aside the letters testamentary that had been issued to plaintiff. Upon appeal from the judge’s order, this court, in an opinion by Brock, J., (see In re Estate of Nancy S. Davis, 7 N.C. App. 697, 173 S.E. 2d 620, filed 6 May 1970) affirmed the order of the Superior Court. The question raised by this appeal is therefore moot since any right plaintiff might have had for injunctive relief terminated with the vacating of its letters testamentary.

Appeal dismissed.

Brocic and Britt, JJ., concur.