
    Mary Daniels and Elizabeth Daniels v. Herman W. Stevens, Circuit Judge.
    
      Mandamus — Appeal from commissioners on claims — Bond, by appellant— Should run to the representative of the estate, who alone can be the “ adverse party.”
    
    On appeal from the action of commissioners on claims in rejecting a claim against an estate, the bond given by the appellant should-run to the administrator or other personal representative of the estate.
    Mandamus, to compel respondent to dismiss an appeal from commissioners on claims, because bond was given to administrator and not to relators, as heirs at law of deceased, they having assumed the burden of resisting the claim.
    
      Submitted February 16, 1886.
    Denied February 17, 1886.
    The facts are stated in the opinion.
    
      T. M. Oroolcer, for relators.
   Campbell, C. J.

Relators, being two heirs at law of Cornelius Evarts, deceased, ask for a mandamus to compel respondent to dismiss an appeal by a claimant against the estate from the action of the commissioners rejecting his claim, because the bond was given to the administrator, instead of to them as adverse parties. They claim a standing as adverse parties, because they assumed the burden of resisting the claim.

Under the statutes no one is recognized, in proceedings to prove claims, except the administrator and the creditor. That exceptional cases may arise is possible. But an heir or other person interested cannot himself appeal from a decision in favor of a creditor unless the administrator refuses to do so: Rev. St. o. 72, §§ 20, 29. That can only be done on giving security to save the estate harmless from damages and costs; and as the administrator must necessarily, in all ordinary cases, represent the interests of the estate in such a controversy in the first place, and is the only person who can prove set-offs, or against whom or in whose favor balances can be ascertained in such a case, it cannot be allowed to any one else to intervene, at his option, in the same contest.

The bond required from an appealing creditor is to pay “all damages and costs.” No damages can possibly accrue to any one but the representative of the estate, and they must usually arise from counter-claims or set-offs. The statute (section 21) which requires the bond to be given to the “adverse party” comes immediately after the section (20) which confines the right of appeal to executors, administrators, and creditors. This is a strong inferential statement that no one else can usually be a party, for it is not to be conceived that any one can be a party who would not himself be allowed to appeal.

We think the bond was properly given, and that the circuit judge was right in refusing to dismiss the appeal. A mandamus must be denied.

The other Justices concurred.  