
    Watson, Admx., v. Watson et al.
    
      Appeal — Probate court to common pleas court — Order confirming sale and ordering distribution — Appeal bond by administratrix unnecessary, when — Sections 11209 and 11210, General Code.
    
    Where papers filed under Section 11210, General Code, showed that appeal taken by administratrix from order of probate court confirming sale and directing distribution was taken in fiduciary capacity, held that, under Section 11209, appeal should have been allowed without bond.
    Appeal and Error, 3 C. J. § 1157.
    (Decided June 22, 1925.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. John A. Scanlon, for plaintiff in error.
    
      Mr. U. H. Hosbrook, for Albert S. Wood.
    
      Mr. W. J. Overbeck, for German American Loan & Bldg. Co.
    
      Mr. Joseph T. Carney, guardian ad litem for minor defendants.
   By the Court.

This cause was originally in the probate court, and was an action brought by the administratrix of Fred Watson, deceased, to sell real estate to pay debts. The real estate was appraised, advertised, and sold to one Albert S. Wood, who held the second mortgage thereon. -A motion was filed by the administratrix to confirm and distribute, which motion was later withdrawn by her and a motion filed to set aside the appraisement and sale, on the ground that the description of the real estate throughout the proceedings was incorrect. The purchaser filed an assignment to himself of the first mortgage, and a supplemental answer averring that he was the owner of both of the mortgage liens. A demurrer to this supplemental answer was overruled; and on motion made by said mortgagee, asking for confirmation, the description was corrected, the sale confirmed, and distribution ordered; certain costs and fees not being allowed as part of the costs of the proceeding. An appeal was then taken to the court of common pleas, notice of which appeal was given, but no bond filed. On motion to dismiss the appeal, because of .the failure to file bond, the court granted the motion, dismissing the appeal, and the matter is now here on error to this order.

Much has been stated in the briefs which is not contained in the record, but from an examination of the papers required to be filed under Section 11210, General Code, we are of the opinion that the appeal from the probate court was taken by the administratrix in a fiduciary capacity, she having given bond for the faithful discharge of her duties, and that the appeal was in the interests of the trust. This is in accordance with Section 11209, General Code, allowing such an appeal without bond. The order dismissing the appeal was therefore erroneous, and prejudicial to plaintiff in error.

The judgment will be reversed, and the cause remanded, with instructions to set aside the order dismissing the appeal, and for further proceedings according to law.

Judgment reversed and cause remanded.

Buchwalter, P. J., Hamilton and Cushing, JJ., concur.  