Bailey v. Woodworth

Bissell, J. The question is upon the sufficiency of the matter pleaded in abatement. The statute provides, that every person appealing from a sentence or decree of a court of probate, shall give bonds with surety to prosecute his appeal to effect; but it does not prescribe to whom the bond shall be taken. It is understood that there has been a diversity in the practice on this subject. In some cases, the bond has been given to the judge of probate; in others, to the appellees. It is certainly desirable, that there should be a uniformity in the practice ; and as the bond for a faithful discharge of the administrator’s duty, is, by statute, to be given to the judge of probate, and as he is constituted the trustee of all persons interested in the settlement of the estate, I think, that in analogy to the provisions of the statute, and to the general course of proceedings under it, the bond on appeal should also be taken to the judge of probate. It is not always easy to determine who the adverse parties, in this proceeding, really are. The interests of the appellant and those of some of the appellees, may be, and often are, identical. Nay, the appeal may be taken and prosecuted for their benefit, although they appear as appellees, and so far, as [398] the adverse party upon the record. It surely would be unjust to say, that the bond is taken for their benefit, or that they might maintain an action upon it against the nominal appellant. By giving the security to the judge of probate, all difficulties are obviated. The suit on the bond is brought in his name, and the recovery upon it, if any, is in his favour ; and as the trustee of those who have a real interest, he may so distribute the sum recovered, as to do entire justice. It may be further remarked, that in the case before us, the security given is a recognizance ; and that is taken to the adverse party, without designating any one, by name, and without its appearing upon the record who the adverse party was. There was, indeed, no such party on the record, when the recognizance was taken. There was no cognizee ; no one in whom the right of action would vest, in case the appellant should fail to prosecute his appeal to effect. On the ground stated, the appeal must abate ; and this advice is to be given to the superior court. Rosmer, Ch. J. and Daggett and Williams, Js. were of the same opinion. Peters, J. was not present when the case was decided. Demurrer overruled.