
    Richmond.
    M’Cauley’s adm’r v. Griffin’s ex’or.
      
    
    1846. April Term.
    
    1. An ex’or or adm’r who, on his qualification, gives bond and seeurity according to law, for the faithful performance of the duties of his office, is allowed to prosecute an appeal without giying an appeal bond, in all cases where the object of the appeal is to assert the rights, or protect the interests of the estate which he represents.
    2. Whore an ex’or or adm’r with the will annexed, has been al lowed by the direction of the testator, and the order of the Court of Probat, to qualify without giving security, he ought not to bo required to give security for the prosecution of an appeal, where the appeal is for the protection of the estate.
    A decree de bonis testatoris having been made by the Court below in favour of M’Cauley’s adm’r against 
      Griffin's ex’or, the executor obtained an appeal to this Court, from the decree, and was not required to give security upon the appeal. He had, too, been permitted to qualify as executor without giving security,
    Whilst the appeal was pending in this Court, M’Cauley's adm’r moved the Court to compel the executor to give security on the appeal.
    
      
      This case should have been published in 3 Grattan.
      
    
   Cabell, P.

delivered the opinion of the Court.

An executor or administrator, who on his qualification, gave bond and security according to law, for the faithful performance of the duties of his office, is allowed to prosecute an appeal without giving an appeal bond, in all cases where the object of the appeal is to assert the rights, or protect the interests of the estate which he represents. Such bond ought not to be required, because the official bond already given, will bind the. executor or administrator, and his sureties, to pay the amount of the judgment or decree, in ease of affirmance ; provided, there be assets of the estate; and that is all that the appellee has a right to demand.

Where an executor or administrator with the will annexed, has been allowed by the direction of the testator and the order of the Court of Probat, to qualify without giving security, he ought not to be required to give security for the prosecution of an appeal, because his qualification as aforesaid, is a warrant to him ’to exercise every official right, and to perform every official duty, without giving any security whatever. Moreover, the requisition of an appeal bond, in such case, is forbidden by considerations of public policy. Such a bond given by an executor, would make the debt his own, in case the decree or judgment should be affirmed ; a hazard which the executor is under no obligation to encounter. The consequence would often be, that the estates of dead men would be subjected to the payment of erroneous judgments and decrees, which would be reversed if the avenues to the appellate Courts were not unreasonably obstructed.

On these grounds, the Court is of opinion to overrule the motion, but without costs.  