To vacate an order denying a motion to dismiss an appeal from the Probate Court.

Denied March 2, 1888.

The grounds of the motion to dismiss were, (1) that the appeal was made in the name of the administrator and the administrator had declined to join therein; (2) that the application was made before the expiration of the time within which the administrator was allowed to appeal. The other objections relate to defects in the bond.

Held, that the statute authorizing heirs-at-law to appeal from the allowance of a claim against an estate, where the administrator declines and fails so to do, authorizes them to defend the proceedings in the Circuit Court, and to control and maintain said defense; that a bond given by heirs on appeal running to claimants alone, but conditioned to pay all damages and costs to claimant and to the estate, is sufficient to confer jurisdiction to allow the appeal; and that if a bond given on appeal from the Probate Court is defective, the remedy is not by dismissing the appeal in the first instance, absolutely, but conditionally in case a new bond shall not be filed within a reasonable time, fixed by the court, under How. Stat., Sec. 7771.