Smith v. Dennison
Smith v. Dennison
Opinion of the Court
The writ of error was sued out by the plaintiffs in error in their capacity as administrators. We see nothing in the circumstances of this case that should take it out of the rule that an administrator may, in all proper cases, for the protection of the estate, take an appeal or sue out a writ of error, and to that end may execute an appeal bond or a supersedeas bond in his capacity as administrator, without incurring any personal liability in respect to such bond. The fact that this decree was entered in the Superior Court after the death of Wallace, but as of a date prior thereto, can make no difference. The administrators stood in the same relation to the decree that they would if it had been entered against them. In that case they would have been directed to make payment in “ due course of administration.” They ought not to be required to incur any larger liability in their efforts to protect the estate by seeking the reversal of a decree which appears to have been rendered against their intestate in his lifetime. The condition of the bond, that in the event the decree should be affirmed the plaintiffs in error would make payment thereof “in due course of administration,” is all that can be required.
Motion denied.
Reference
- Full Case Name
- A. P. Smith Admrs. v. Franklin Dennison, Receiver, etc.
- Status
- Published
- Syllabus
- Supersedeas bond by an administrator—as to character of liability to be assumed. After the hearing of a cause in chancery, but before the entry of any decree, the defendant died. By stipulation of counsel a decree was entered nunc pro tunc, as of the date of the.hearing, so as to appear to have been rendered against the defendant in his lifetime. In suing out a writ of error to reverse the decree, the administrator of the defendant executed a supersedeas bond conditioned that in case of affirmance the decree should be paid “in due course of administration.” This was held sufficient. The administrator was not bound to assume an absolute personal liability for the payment of the decree against his intestate.