In Re Estate of McDermott

McFARLAND, J.

The transcript shows two appeals—one by Carrie McDermott, who was at one time the special admin

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istratrix of the estate of William McDermott, deceased, and the other by the Fidelity and Deposit Company of Maryland, a corporation, claiming to have been surety on a bond of said Carrie as such special administratrix; and the case is now before the court on a motion to dismiss said appeals. The appeals are from an order of the lower court made June 23; 1899, disallowing an account of said Carrie as such administratrix.

There is no bill of exceptions as provided for in rule XXIX of this court, and no attempt to otherwise identify the papers and evidence used on the hearing of the motion in the court below, and therefore one of the grounds of the motion to dismiss, applicable to both appeals, is want of a properly authenticated record on appeal; but we do not deem it necessary to determine whether, in this particular case, the defect in the record is ground for dismissing the appeals, or whether it would only have been ground for affirming the judgment had the whole case been submitted, because we think that each appeal must be dismissed upon other grounds stated in the motion.

One of the grounds for dismissing the appeal of Carrie Mc-Dermott is that she gave no undertaking on appeal. The fact that she gave no such undertaking is admitted; but she contends that her bond as special administratrix stands in lieu of an undertaking on appeal under section 965 of the Code of Civil Procedure, which provides that when an executor, administrator, or guardian, who has given an official bond, appeals from a judgment or order made in proceedings had in the estate of which “he is the executor, administrator, or guardian,” his official bond shall stand in the place of an undertaking on appeal. But when this appeal was taken the said appellant was not the administratrix of said estate. On June 13, 1899, she filed her written resignation as administratrix, and in said resignation requested that C. Gr. Kellogg, public administrator, be appointed special administrator of the estate; on the same day Kellogg filed his petition for appointment as special administrator, in which he stated that appellant Carrie, who was the widow of the deceased, requested his appointment; and on the next day, June 14th, the court appointed Kellogg as such administrator. This appeal was not taken until August 17, 1899, more than two months after she had resigned and her successor