Summary
In Luce v. Luce, 559 S.W.2d 369 (Tex.Civ.App. Austin 1977, no writ), the Austin court looked at the then newly-enacted probate code, and read into Section 29 the language from the prior statute that was omitted in the new code, to support its conclusion that a cost bond is required unless an appeal is taken by the executor in his or her fiduciary capacity.
Summary of this case from In re ShoreOpinion
No. 15715
December 21, 1977.
Appeal from the County Court, Burnet County, Alvin Nored, J.
Jim M. Cross, Marble Falls, for appellant.
Everett H. Smith, Smith, Smith Mealy, Kingsland, for appellee.
Appellant, Lily Luce, tendered the Clerk of this Court a transcript and statement of facts which the Clerk refused to file because the transcript showed that appellant did not file a cost bond. Appellant has filed a motion requesting this Court to order the record file. We will overrule the motion.
Appellant appeals from the order of the county court of Burnet County which removed her as the administratrix of the estate of Howard Douglas Luce. Appellant did not file a cost bond. If a cost bond is required, the Clerk correctly refused to file the record since this Court would not have jurisdiction of the appeal.
Appellant claims that Tex.Prob. Code Ann. art. 2276 (1971) which provides:
"When an appeal is taken by an executor, administrator, or guardian, no bond shall be required, unless such appeal personally concerns him, in which case he must give the bond."
The genesis of § 29 is found in the second paragraph of Tex.Rev.Civ.Stat.Ann. art. 2276 (1971) which provides:
"Executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity." (Emphasis added)
The emphasized language in art. 2276 has been construed to mean that if the appeal concerns a matter personal to the executor, administrator, or guardian, such as an order removing him from one of those capacities, then such party is not taking the appeal in his fiduciary capacity, and, as a result, a cost bond is required. Powell's Estate v. Mackey, 219 S.W.2d 156 (Tex.Civ.App. 1949, writ ref'd); Wedgworth v. Roberson, 45 S.W.2d 427 (Tex.Civ.App. 1931, writ ref'd).
The holdings in Powell's Estate v. Mackey, supra, and Wedgworth v. Roberson, supra, are now codified in § 29. Because her, her removal as administratrix, she was required to file a cost bond.
Appellant's motion is overruled.