131 Mo. App. 201 | Mo. Ct. App. | 1908
The plaintiff is the regularly appointed and acting administrator of the estate of Rebecca Smith, deceased. At the November term, 1905, of the probate court of Linn county he presented a demand for allowance against the estate of the deceased consisting of matters of account amounting to $1,275.31 and a promissory note for $900. On the presentation of this demand the court appointed C. H. Lamar to appear and manage the defense who waived notice of presentation of the said demand. Before the cause was finally tried Lamar became a non-resident of the State and filed his resignation. The court then appointed the defendant to act in his place. The cause-was heard and the plaintiff obtained judgment for the sum of $2,568.40. The defendant appealed the cause to the circuit court but failed to give any appeal bond. On motion of the plaintiff the court dismissed the appeal because of the failure of defendant to give such bond, and defendant appealed to this court.
The only question for our consideration is, whether the defendant acting by appointment of the court to defend the estate against a claim by the regular appointed and acting administrator was required to give bond. Under the law of administration an administrator is not required to give bond, when he appeals from a judgment of the probate court. [R. S. 1899, sec. 281.] Appeals ax*e alloAved from the decisions of a probate court on judgments as to certain matters mentioned in sec
The appellant does not come within the description of persons who are allowed appeals from the orders and judgments of probate courts unless he may be said to be an administrator. We have been unable to find any adjudication on the question and have been referred to none. In the first place it is plain that there was no necessity for such bond in order to secure the plaintiff in the payment of his demand in the event that the judgment would be affirmed on appeal, for the plaintiff as administrator would have the funds of the estate if any in his own hands to pay his demand. In the second place it would be unreasonable to require defendant who had no personal interest in the controversy to bind his own estate by a bond for the payment of the demand in any contingency. The purpose of the statute in such cases is to have the estate represented by some.suitable person to defend against such demands. If such person so appointed is satisfied that the estate has been prejudiced by the judgment of the probate court, he ought to be permitted the right of appeal, but if he is required to give an appeal bond pledging his own estate it is not reasonable to suppose that he would exercise such right.. This appointment would, under such circumstances, limit his duty to making a defense in the probate court. This would not answer the purpose of his appointment
Had the statute denominated him administrator pendente lite there could be no question as to his right of appeal. His position was impressed with all the duties of such a representative. It only lacks the name. The probate record shows that he was dubbed administrator pro tempore at one time and administrator pendente lite at another. We think his office was properly designated. If he was acting as administrator in fact as we believe he was, he had the same right as the administrator had to appeal from a judgment against the estate. The right of appeal in such cases is not a personal right of the administrator, but a representative right and this right the defendant had by virtue of his appointment. Reversed and remanded.