
    Pleasant C. Muirhead vs. Catharine Muirhead.
    An appeal from a decree of the probate court suspends the operation of the •decree ; therefore, in a suit by an administrator, whose letters of administration have been revoked by the probate court, but from which decree the administrator has appealed, it will be error for the circuit court not to charge the jury, when asked, that the appeal suspends the revocation.
    Where a bill of exceptions is taken to a refusal of the court to give an instruction, only so much of the evidence need be stated as bears upon the propriety of the charge required.
    It is not necessary that the bill of exceptions taken to a refusal to grant instructions, should state that it was signed before the jury retired from the box; it is sufficient if that fact appear on the face of the exceptions in any other way.
    In error from the circuit court of Choctaw county; Hon. Benjamin F. Caruthers, judge.
    This was an action of replevin commenced by Pleasant C. Muirhead against Catharine Muirhead, in which judgment was rendered for defendant.
    During progress of the trial a bill of exceptions was taken, which in substance states that, on the trial of the cause, the plaintiff proved that letters of administration were granted him by the court of probate on Charles Muirhead’s estate.
    The defendant proved that the letters granted on said estate to the plaintiff were revoked, and letters were granted to the defendant.
    It also appeared, that the plaintiff had appealed to the high court of errors and appeals, from the order of the court revoking his letters, and had given an appeal bond in the penal sum of one hundred dollars.
    The plaintiff’s counsel then asked the court to instruct the jury, “ that if they believed from the evidence, that the plaintiff had appealed from the order revoking his said letters, and granting letters to said defendants, that the grant of letters gave defendants no right to the property of said Charles Muirhead.”
    This the court refused, and the plaintiff took his bill of exceptions. The latter does not purport to embody all the evidence; it concludes in this way, viz., “which said instruction the court refused to give, to all of which the said plaintiff did then and there except, and. filed this his bill of exceptions, which is signed, sealed, and made a part of the record in said cause.”
    Benjamin'F. CaRutheRS, judge presiding, [l. s.]
    The plaintiff below prosecutes this writ of error.
    
      A. C. Baine, for plaintiff in error.
    The only question before the court below, or before this court is, who was entitled to the immediate possession, as the statute expresses it. The probate court did not appoint a person to take possession of the property during this litigation. Then, of course, the right was with the prior grant of letters. The force of the subsequent revocation and grant was suspended by the appeal, which left the first letters in full force and effect, and certainly entitled to the property, in the absence of any appointment to take possession of it during the litigation.
    
      Sheppard, for defendant in error.
    The bill of exceptions is fatally defective; it does not present the evidence offered on the trial, nor is it stated in the bill that it was signed and taken before the “jury retired from the bar.”
    The rule is well settled, that if exceptions are taken on points during the progress of the cause, it must appear on the bill of exceptions that it was signed and taken before the jury retired. Wilson v. Owens, 1 How. 126.
    The exception was taken on the refusal of the court to give a charge asked by plaintiff below. The instruction was incorrect, and properly refused.
    The statute requires that the probate court should appoint an administrator, who is entitled to the possession of the assets pending the appeal. Rev. Code, 31, § 13.
   Mr. Justice Thacher

delivered the opinion of the court.

The plaintiff in error instituted an action of replevin in the circuit court of Choctaw county, to recover certain property of the estate of Charles Muirhead, deceased, of which estate he claimed to be administrator. A bill of exceptions filed to the refusal of the court below, to give an instruction called for by the plaintiff, discloses the main question in this case to be, what the effect is of an appeal from a decree of a probate court revoking a grant of letters of administration. This court has already held, that an appeal suspends the operation of the decree. Wade v. The American Colonization Society, 4 S. & M. 670. In the case now before us, the plaintiff’s letters of administration upon the estate of Charles Muirhead had been revoked, and letters of administration granted to the defendants; but the plaintiff had appealed from that decree, and the appeal was pending at the period of the trial of this case below, and no appointment of any person to act as administrator under the statute (H. & H. 385, § 1,) appears to have been made. The court below refused to charge the jury, that the effect of the appeal from the decree of the probate court suspended the operation of the decree. This, as we have seen, must be Jield to be error.

The objections to the bill of exceptions; first, contain the whole evidence in the case; and seq not stated therein that it was signed “ before <$R from the box,” are met by the circumstances «h? filed to a refusal of the court to give an instrumifi the plaintiff, and so much only of the evidence as bore upon the propriety of the charge required ; and secondly, that the bill contains ample internal evidence of its having been signed before the jury retired from the box.

The judgment is therefore reversed, and the cause remanded for a new trial.  