Mumford v. Hall
25 Minn. 347
Minn.
1879
Check Treatment
Berry, J.

The bond involved in this case is not such as was required either by section 2, or section 3, chapter 41, Public Statutes, the law in force at the time when it was executed.

Looking upon its face, it is quite apparent that the parties executing it did not intend it to be such a bond as is required by section 3 — that is, the bond prescribed for an executor who is also residuary legatee. It was clearly intended to be the ordinary executor’s bond prescribed by section 2. Its condition is “that if the said executrix and executor shall pay all the debts and legacies of the said testator, or such dividends thereon as shall be ordered and decreed by the probate court, out of the goods, chattels, rights, credits and estate of the testator, and render a true and just account of their administration when required, and perform ail orders and decrees of the probate court by them to be performed, then this obligation to be void, otherwise in full force.” This is a condition essentially differing from that prescribed in section 3. While it is in part the condition prescribed in section 2, it falls far short, and in substantial particulars, of satisfying the pro-*, *354visions of that section, as a glance at the same will show. The bond was not such as the statute required. Nevertheless, upon this bond, as it is, the probate court, on June 13, 1S61, issued letters testamentary to the executor 'and executrix named in the will, reciting therein that they had “complied with the provisions of the statute in such case made and provided.” The letters were in form such as are usually issued to ordinary executors. Now the statute (Pub. St. c. 58, § 43,) provided that an appeal might be taken to the district court from the probate court, from “an order appointing a person administrator, executor or guardian.” An executor is nominated, and in a sense appointed, by the will; but the appointment referred to in this provision of statute is manifestly an act of the probate court. As the statute mentions no other, we think that, as respects the case before us, the appointment referred to is the act of the probate court in issuing letters testamentary under Pub. St. c. 41, § 1, providing that “when a will shall have been duly proved and allowed,, the probate court shall issue letters testamentary thereon to the person named executor therein, if he is legally competent, and shall accept the ■ trust, and give bond as required by law.” The letters testamentary are in fact, as well as in form, an order of appointment.

There being no question as to the jurisdiction of the probate court in the premises, its order, unless appealed from, is, in a case of this kind, a conclusive adjudication that the •executor and executrix named in the will were entitled to letters testamentary, and that the issuance thereof was proper. In making this adjudication, the probate court is to be taken to have determined that the bond was sufficient, since the •question of its sufficiency was necessary to be determined before the issue of the letters. As we have already seen, the '.bond was really insufficient. But as the probate court had jurisdiction of the matter before it, its determination was •erroneous merely, not void; for there is nothing in the statute which makes the bond jurisdictional. Notwithstanding *355the error, then, as it does not appear that any appeal has been taken- from the appointment of the executor and executrix, the appointment stands good. It follows that the district court erred in holding the letters testamentary to .be void, and in reversing the action of the probate court upon that ground. The probate court properly held, in effect, that the letters were valid, and in the exercise of a discretion which we see no occasion to review, refused to remove the executor and executrix named in the letters testamentary, and directed them to file an additional bond. The order of the district court refusing a new trial is accordingly reversed, and .such court directed to enter an order affirming the order of the probate court.