| Vt. | Mar 15, 1863
The statute prescribes the steps to be taken in order to constitute the taking of an appeal from the decisions of the probate court, or from the decision and report of the commissioners on estates appointed by the probate court. Sec, 27, ch. 52, Comp. St., contains the provision for taking an appeal in such a case as the one now before us, and requires that “ the person appealing in such case shall, before such appeal shall be allowed, give a bond, as well to secure the estate from damages and costs, as to secure the intervening damages and costs to the adverse party.” This language of the statute is so explicit as to leave no room for conjecture, and must be regarded as prescribing a thing to be done that is essential to the taking of an appeal. It is the same in effect as that of the ith division of sec. 20, providing for an appeal by an executor, administrator or creditor, viz : “ before such appeal shall be allowed the person appealing shall give a bond to the adverse party, or to the probate court, &c.” Language so explicit, taken in view of the obvious purpose designed to be served by the provision, can be regarded as constituting nothing less than a peremptory requirement, necessary to be complied with, in order to the taking of an appeal. It is clear that the purpose is to effectuate an absolute security to the other parties to be affected by the appeal, as one of the elements constituting the appeal itself.
The language of ■ the statute is no more explicit requiring security by way of recognizance, in case of appeals from the judgment of a justice, or requiring recognizance to be entered upon the issuing of mesne process ; and in these cases it is settled by reported decisions that such recognizance, in strict conformity to the laws of the statute, is indispensible to the appeal in the one case, and to the validity of the writ in the other ; and that
In the case now before us, the statute requires the giving a bond, as well to secure the estate from damages and costs, as to secure the intervening damages and costs to the adverse party ; and we are unable to regard the giving of the bond to secure the estate less indispensible than the giving of the bond to secure the adverse party.
In case of an attempted appeal under the 20th sec., if no bond should be filed before entering the case in the county court, it would hardly be claimed that an appeal had been perfected, or that on tlie fact appearing of the omission to file such bond, the effect of the omission could be avoided by filing one on leave asked and granted by the county court.
The attempted appeal in the present case, under the 27th sec,, must stand on the same ground, inasmuch as it stands on a simi-. lar provision of the statute, and upon the same reason.
The question then arises whether, in this case, the omission to file such bond, before the allowance of the appeal, can be taken advantage of by motion.
It is well understood, and is not controverted in this case, that a motion for such a purpose is proper only in case the alleged cause, on which it is predicated, appears on the face of the record,
It is proper to remark that the record filed in the county court should show, if not in clear and explicit "terms, at least by fair intendment and implication, all that is essential, as constituting the taking of an appeal.
Does the omission to file the necessary bond appear on the record in this case ?
The record, after reciting the preliminary matters, and stating the application for the appeal, proceeds, “ and the said Charles Waldo, administrator as aforésaid, having given bond to the satisfaction of this court for the prosecution of said appeal to effect, as well as tp secure the payment of all intervening damages and costs occasioned thereby to the said Arnold, claimant as afore
It is true that the word bonds, in the plural, is used in the record, while, for the'purpose specified, only a single bond was necessary.
If the record had not specified the character and particular purpose of the security thus given, it might, with some plausibility, have been urged that it was legitimately to be intended and implied that the bonds were such, and for all the purposes, as required by the statute, in order to entitle the appeal to be allowed.
But when it expressly specifies the purpose for which the security was taken, any intendment or implication that the security was taken for any other purpose is excluded, upon principles and reasons that are quite familiar.
¥e think, therefore, that the face of the record must be regarded as furnishing ground for the motion in this case, and for the reasons before assigned that the motion must prevail.
Upon the question of the right of the administrator of Clarissa Arnold to take an appeal, though it is not necessary, still, as it has been fully argued by counsel and considered by the court, it is regarded proper to annormce the opinion of the Court.
It is clear that upon the decease of Mr. Brooks, his daughter Clarissa, surviving, became his heir in the strict legal, as well as in the popular sense of the term, and her rights as such became fully vested. It is not denied that, had she been living when the claim in question was presented before the commissioners on her, father’s estate, and passed upon by them, she would have had the right of appeal, in virtue of her being heir of the intestate.
His decease did not affect the right which had become vested
The fact that she was sole heir of her father, does not affect the case, because the persons entitled under her or to her rights as heir, do not stand upon their relation of heirship to said Brooks, — but on their relation to her either as her heirs, or her creditors. The relation of heirship to her does not depend upon their having at the same time a like relation to her father,— for the obvious reason that persons may be her heirs, who are not, and could not be heirs of her father.
Her administrator represents her, and the rights vested in her, as heir oí her father, in respect to all the rights and interests of others in her estate.
So that, from the very nature of the case, under the provisions of our statutes on the subject, and without resort to authority, it is clear that her administrator had the same right of appeal as she would have had if living at the time this appeal was sought to be taken. The principle is involved in the case of Wiggin, Adm’r v. Smith, 6 Met. 194, Shaw, Ch. J., p. 197-8 ; Downing v. Porter, 9 Mass. 386" court="Mass." date_filed="1812-10-15" href="https://app.midpage.ai/document/downing-v-porter-6403941?utm_source=webapp" opinion_id="6403941">9 Mass. 386.
The judgment of the county court dismissing the appeal, is, upon the first ground above discussed, affirmed.