Hudson v. Gray , 58 Miss. 589 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court.

An executor, upon final settlement, after long litigation, was adjudged to pay the costs therein. Ho has appealed without bond, and insists that he is, entitled to maintain his appeal without having given bond either for costs or for a supersedeas, basing his right upon sect. 2334 of the Code, which is in these words: “ Executors, administrators, and guardians, except executors who have not given bond, may appeal from any judgment, decree, or order affecting them in their fiduciary character, and shall have a supersedeas on such appeal without bond for costs or for a supersedeas; but they may be required to prepay the clerk for transcript of the record for tho Supreme Court.” The section relieves from the obligation to give bond only when the judgment or decree is against the executor or administrator in his fiduciary character; that is to say, where it is satisfiable de bonis testatoris, or where, by reason of a devastavit bv the fiduciary, he has become personally liable. In such case, those who have recovered it are already protected by the bond given at the inception of the trust relation, and no further security is required ; but where no bond as executor has been given, or where the judgment or decree is to be primarily satisfied de bonis ¡rrojiriis, the usual appeal-bond must be executed. In this case the costs were adjudged to be paid by tlie executor de bonis propriis, and as to them he stands upon the same footing as any other appellant, and must give bond as such.

Under the provisions of sect. 1407 of the Code of 1880, authorizing us to perfect all appeals and cure all irregularities in suing them out, we direct that a supersedeas-bond in the sum of $500 be filed in this court within eight days, in default of which the appeal will be dismissed.

Several of the heirs of the testator united with the executor in praying for an appeal. It is not necessary that they should unite in the bond, since one appellant may give bond for all! It is sufficient that all join in the appeal, and that one or more execute the bond. Code 1880, sect. 2882.