In re Meseberg's Estate

Putney, J. The judgment of the county court upon the account of Eredericke Meseberg as executrix of the estate of Christian Meseberg, deceased, adjudging that there Avas due to the estate of Christian Meseberg, deceased, from the said Fredericke Meseberg, deceased, executrix, etc., the sum of $1,253.85, was affirmed, and it was further adjudged that the said Wilhelmine Felt, as administratrix de bonis non, was [404] entitled to receive the said sum. This judgment must be affirmed. The case was tried upon the merits, and the bill of exceptions is so radically defective, in that it does not appear that it contains all the evidence admitted at the trial, that it is impossible for this court to review the findings of fact of the circuit court. They fully sustain the judgment rendered. It is contended on the part of the appellants, the executors of John Steiner, deceased, that Fredericke Meseberg, as executrix of Christian Meseberg, took the personal estate of Christian Meseberg, deceased, under his will, with the right to use the corpus of it, so far as might be necessary for her support during her life, and that only what was left after her decease would pass to Wilhelmine Felt, the daughter, and that the circuit court erred in charging her with a balance of $1,253.85, after deducting the credits allowed; and it was argued that there was no personal estate left, upon the decease of Fredericke, representing or amounting to that sum, and that therefore the judgment is erroneous. The plain answer to this contention is that there is no such finding. The presumption is that the finding and judgment are correct. Error must be made to appear affirmatively, and the burden of showing it from the record is on the appellant. This has been uniformly held by the court in numerous cases during a period of more than fifty years. Hardly a term passes without reiterating and applying the rule. The latest expression of the rule is in the case of McDermott v. C., M. & St. P. R. Co., ante, p. 38. The court is bound to presume, in the present state of the record, that evidence was produced showing that there was personal estate left by Fredericke Meseberg equal or equivalent to the amount adjudged against her as the balance on her account, and which did not come to the hands of Wilhelmine Felt as ad-ministratrix de bonis non of the estate of Christian Meseberg, deceased, or to presume that any other state of facts was [405] established, within the issue, which would warrant the finding and judgment of the circuit court. We do not find it necessary to determine whether Fredericke Meseberg had any other than a mere life interest in the estate of Christian Meseberg, deceased, or any right to use, for any purpose of her own, any part of the corpus of such personal estate. The result is that the judgment of the circuit court on the appeal of the executors of John Steiner, deceased, in the matter of the estate of Christian Meseberg, deceased, must be affirmed. The appeal of Wilhelmine Felt, administratrix de bonis non, to the circuit court, from the determination or judgment of the county court dismissing her claim and petition against the estate of John Steiner, deceased, without prejudice and with costs, was not perfected as prescribed by law, so as to confer jurisdiction upon the circuit court to hear and determine it, for the reason that the appellant did not give the security required by the statute on such appeal. The statute applicable to the case (sec. 4032, E. S.) provides “ that the party appealing, other than an executor, administrator, guardian or trustee, shall at the time of filing notice of appeal, and before his appeal shall be effectual for any purpose, file with the county court an undertaking in such sum and with such surety as the judge thereof shall approve, to the effect,” etc. Wilhelmine Felt, as administratrix de bonis non of the estate of Christian Meseberg,' in prosecuting her claim as such against the estate of John Steiner, was not within the exception of the statute allowing an appeal byj an administrator without giving the statutory security. While she might appeal as such administratrix from any order, judgment, or determination of the county court in the matter of the estate in which she had been appointed such administratrix, by which’ she might be aggrieved, without giving the security required by the statute, she is not exempted by the statute from giving such security [406] when she appeals in her representative capacity as admin-istratrix, etc., from any such order, judgment, or determination in any other matter, proceeding, or cause. The statute was not intended to, and does not, confer on an administrator a general right to appeal without giving the security prescribed by it, but merely a right to so appeal from an order, judgment, or determination made in the matter of the estate in which he has been ajipointed such administrator. The circuit court therefore erred in overruling the motion to dismiss the appeal, and the subsequent proceedings in that court were without jurisdiction. By the Oov/rt.— The judgment of the circuit court on the appeal to that court by the executors of John Steiner, deceased, in the matter of the estate of Christian Meseberg, deceased, is affirmed. The judgment of the circuit court on the appeal to that court by Wilhelmme Felt, administratrix de bonis non of the estate of Christian Meseberg, deceased, in the matter of the estate of John Steiner, deceased, is reversed, and the cause is remanded with directions to dismiss said appeal.