
    Appeal of John Mullins.
    Bond on Aepeal eeom: Peobate. (1) To whom it must run. (2) Effect of misnomer of obligee.
    
    1. It seems that a special administrator of the estate, appointed before probate of a will, is the “ adverse party ” to whom the bond on appeal from an order admitting the will to probate should run; and this is certainly so where the special administrator is also the proponent of the will and the executor named in it.
    2. It is the duty of courts, where it can be done, to disregard mere clerical errors, ut res magis valeat giimn pereat; and where the bond on appeal from an order of the county court admitting a will to probate, running expressly to one M. as special administrator of the estate, gave his Christian name erroneously, by a clerical error: Held, that the administrator, if the appeal should fail, might sue on such bond in his proper name, alleging the misnomer; and that the bond is sufficient for the purposes of the appeal.
    APPEAL from tbe Circuit Court for Manitowoc County.
    
      Michael Mullms presented tbe will of Patrick Mullins, deceased, to tbe county court of said county, for probate; and tbe will was contested b j John Mullins, a son of tbe deceased. While tbe matter was pending in tbe county court, Michael Mullms was appointed special administrator of tbe estate. The will having been subsequently admitted to probate, Jolm Mullins served a notice of appeal to tbe circuit court, directed to tbe county court and to Michael Mullins as special administrator; and also filed an appeal bond running to “William Mullins” as special administrator of tbe estate. Michael Mul-lúns moved tbe circuit court to dismiss the appeal on tbe ground that tbe bond was not given to “ tbe adverse party,” as required by tbe statute. Tbe appellant, by leave of tbe county court, then filed a new bond running to Michael Mulli/ns as special administrator. Tbe circuit court dissmised tbe appeal on tbe ground above stated, among others, and tbe contestant appealed from tbe order.
    Briefs were filed, signed by H. G. & W. J. Turner for the appellant, and J. D. Markham, with Taylor & Sutherland of counsel, for the respondent; and the cause was orally argued by W. F. Vilas for the appellant, and David Taylor for the respondent.
    For tbe appellant it was contended, i/nter alia, that tbe special administrator was tbe “adverse party ” to whom tbe appeal bond should run (State ex rel. Tallmadge v. FVmt, 19 Wis., 621); that tbe misnomer in tbe original bond would not prevent a recovery upon it (Colburn v. Downes, 10 Mass., 20; Medway Cotton Man. Co. v. Adams, id., 362), and therefore that bond, being sufficient to protect tbe rights of tbe respondent, was sufficient (Foster v. Foster, 7 Paige, 48); and that, if otherwise, tbe county court bad statutory power to allow tbe appeal to be perfected by tbe filing of a new bond. Laws of 1860, cb. 264, sec. 17.
    For tbe respondent it was argued, that a bond not given to tbe adverse party is not a compliance witb tbe statute (Tay. Stats., 1313, § 25), and gives the appellate court no jurisdiction (Thompson v. Thompson, 24 Wis., 515; Tallmadge v. Flint, 19 id., 621; Nelson v. Clongland, 15 id., 392; Hard-wiek v. Fstate of Dúchame, 32 id., 155-6); and that, as tbe circuit court could not acquire jurisdiction by permitting a new bond to be filed when there was a defect in the original, so the county court could not cure a defect in the appeal by allowing a new bond to be filed, there being no statute authorizing it. Thompson v. Thompson, supra/ Western Union JR. JR. Co. v. Diekson, 30 Wis., 389.
   Ryan, C. J.

I. Probably, in any case, the special administrator should be considered as the adverse party, to whom, in circumstances like these, the appeal bond should run. He is, for the time being, the only representative of the estate. If the appeal succeed, the estate would bear the costs. If the appeal fail, it seems that the estate should recover the costs. Here, however, the special administrator is also the proponent of the will and the executor named in it. There appears no room for doubt that he is the adverse party to whom the appeal bond should run.

II. The insertion of the name William Mullins, for Michael Mullins, in the appeal bond, is obviously a clerical mistake. The notice of appeal is to Michael, as special administrator; and the bond itself runs to William, as special ad/rrmvistraio.r of the estate. It is obvious that the bond is not intended to run to a different person, but to the same person by a different name: an accidental misnomer. If it were our duty to uphold the dismissal of an appeal on so purely technical a ground, for so mere a slip of the pen, we should regret it. Rut we cannot think the mistake sufficient to defeat the bond.

The bond goes to the special administrator, in his representative character; and would, doubtless, be good without the use of his personal name. And if the appeal should fail, we can see no difficulty in the way of the special administrator’s suing as such in his proper name, upon the bond, averring the special administrator to be therein called William instead of Michael. The right is in neither Michael nor William personally, but in the special administrator of the estate; and the misnomer of the person leaves no doubt of the obligee of the bond. Falsa demonstratio non nocet. 2 Parsons on Con., 514.

It is always the duty of all courts, where it can be done, to overcome and disregard such clerical errors, ut res magis valeat quam pereat. Davis v. Judd, 11 Wis., 11; Morrison v. Austin, 14 id., 601; Nolty v. State, 17 id., 668; Russell v. Monson, 33 Conn., 506; Stockton v. Turner, 7 J. J. Marsh., 192.

Eoi’ these reasons we think the first appeal bond sufficient, and need not consider the question whether, if insufficient, it might be replaced by an amended one.

By the Oowt. — The order of the court below dismissing the appeal is reversed.  