DeVILLIERS v. WHITEBIRD

DeVILLIERS v. WHITEBIRD
1940 OK 400
105 P.2d 1055
188 Okla. 38
Case Number: 27859
Decided: 10/01/1940
Supreme Court of Oklahoma

DeVILLIERS
v.
WHITEBIRD et al.

Syllabus

¶0 APPEAL AND ERROR--Statute allowing executors and administrators to appeal without bond applicable only where appeal taken in interest of estate.
The right given to executors and administrators by section 1403, O. S. 1931, 58 Okla. St. Ann. §740, to appeal without bond applies only where the appeal is in the interest of the estate represented by them and does not apply where the appeal is by an executor or administrator from an order disapproving certain items in his final account and disallowing the same as a charge against the estate represented by him.

Appeal from District Court, Ottawa County; Ad V. Coppedge, Judge.

D. C. DeVilliers, opposed by Flora Whitebird et al., appealed to the district court from an order of the county court which disapproved certain items in his final account as executor and disallowed the same against the estate which he represented and failed to give bond required on such appeal. The attempted appeal was dismissed, and he has prosecuted this appeal. Affirmed.

J. J. Smith, of Miami, for plaintiff in error.
O. F. Mason, of Miami, for defendants in error.

PER CURIAM.

¶1 This is an appeal by D. C. DeVilliers from an order of the district court of Ottawa county which dismissed an appeal which he had taken, without giving bond, from an order of the county court of said county settling his accounts as executor.

¶2 The appeal to the district court was from an order disapproving certain items of a final account and disallowing the same as charges against the estate which the said D. C. DeVilliers represented as executor. The purpose of the appeal was to compel the allowance of claims against the estate and to thereby decrease the liability of the said D. C. DeVillers. The appeal was solely in the interest of the said D. C. DeVilliers and against the interest of the estate which he represented. It is well settled in this jurisdiction that the right of an executor or administrator to appeal without bond applies only where the appeal is taken in the interest of the estate and does not apply where the appeal is taken by the executor or administrator from an order disapproving certain items of his final account and disallowing the same as charges against the estate represented by such executor or administrator. Hunter v. Cooper, 173 Okla. 404, 48 P.2d 1078; Allen, Adm'r, v. Kinder, 150 Okla. 156, 300 P. 653.

¶3 Where an appeal bond is required by sections 1401 and 1402, O. S. 1931, 58 Okla. St. Ann. §§725 and 726, it must be given before the district court has jurisdiction to review the cause on its merits. Arnold v. Richardson, 90 Okla. 220, 217 P. 381; Adair v. Montgomery, 74 Okla. 21, 176 P. 911. Since the appeal in the case at bar was prosecuted solely for the benefit of D. C. DeVilliers and had for its purpose the diminution of the estate represented by him, it could not be maintained without the execution of the bond required. Therefore, the district court proceeded properly when it dismissed the appeal on motion. There is no error.

¶4 Judgment affirmed.