
    Atkinson v. Christian.
    January Term, 1847,
    Richmond.
    (Absent Daniel, J.)
    i. Appeals-From County Court as of Right — Wills.— The act, Sup. Rev. Code, ch. 109, § 30, p. 145, authorizes appeals as of right from the County to the Superior Courts, in the case of a sentence or order made under the 41st section of the act concerning wills, intestacy and distributions, 1 Rev. Code, ch. 104, p. 385, revoking, whether absolutely or conditionally, for any of the causes in that section mentioned, the powers of the ex’or or adm’r, with a view to the appointment in his stead of an adm’r de bonis non, or the committing the estate to the sheriff.
    *2. Executors and Administrators — Security-Discretion of Court. — By the 21st and 35th sections of the act, 1 Rev. Code, ch. 104, it was intended that the Court granting administration on an estate, or admitting an ex’or to qualify as such, should have a discretion in regard to the amount of the security. And the general practice of requiring the security in double the estimated value of the estate, is a proper exercise of that discretion.
    
    3. Same — Same—Statute Authorizing Other Good Security — Effect.—Tne other good security authorized to he required by the 41st section of the act, is not to be in lieu of, or by way of substitution for, the former security, but in addition thereto. And the former securities are not thereby exonerated.
    4. Same — Same—Same—How Amount Determined. — In determining the amount for which the other good security ought to be required, regard ought to be had to the value of the estate remaining nnad-ministered, including any accessions thereto beyond the original estimate thereof, and to the extent of the available security still furnished by the original bond.
    5. Same — Same—Same—Order of Appellate Court Requiring — Directory.—The order of an appellate Court requiring other good security from an ex’or or adm’r should be directory only, to the Court that originally granted the probat or administration: the latter Court alone having authority to receive the additional bond and security.
    At the January term of the County Court of New Kent, for the year 1843, John S. Atkinson qualified as *'administrator on the estate of Robert Bailey deceased : and having’ estimated the estate at 24,000 dollars, he was required to execute, and did execute, an administration bond, in the penalty of 48,000 dollars, with Frances Bailey, William Atkinson, Samuel W. Bradley, Ezekiel S. Talley, Thomas K. Jones, Joseph M’Ghee, Elizabeth Atkinson, and William L. White, as his sureties. These sureties were required to state on oath what they were each worth after the payment of their just debts; and from these statements it appeared that Frances Bailey was worth 7000 dollars, William Atkinson was -worth 6000 dollars, Bradley 6000 dollars, Talley 5000 dollars, Jones 4000 dollars, M’Ghee 10,000 dollars, Elizabeth Atkinson 10,000 dollars, and White 5000 dollars.
    At the September term of the Court following, John D. Christian, as the guardian of the children of Robert Bailey, applied to the Court, stating that Bradley and White, two of the sureties of Atkinson, had become insolvent; and that the other securities were insufficient. And he asked that Atkinson might be required to give other good security, or that his powers as administrator might be revoked.
    A summons was issued to Atkinson upon this application, which was returned executed ; and at the next term of the Court, the parties were heard, when the Court made an order that Atkinson should give other good security for the performance of his duties, the penalty of the bond to be 48,000 dollars, or that his powers as administrator should be revoked. The entry on the record then proceeded: “And the said John S. Atkinson being present, and failing to give the security required by this order, his powers as administrator of said Robert Bailey are hereby revoked.”
    Atkinson excepted to the opinion of the Court; and prayed an appeal to the Superior Court of New Kent county, which was allowed.
    *In addition to the facts hereinbe-fore given, the bill of exceptions stated: That the plaintiff introduced a witness, who proved the insolvency of Bradley and White, two of the securities to the administration bond. That he also offered evidence to prove that Frances Bailey was worth only 5000 dollars; that William Atkinson was worth only 2000 dollars, and that Elizabeth Atkinson was worth only 1000 dollars. That there was no evidence introduced to shew that Talley, Jones and M’Ghee were worth less than the amount stated by them. That two of the witnesses examined on the trial, stated, that from the visible property in the possession of Talley and M’Ghee, Talley was worth 7000 dollars, and M’Ghee was worth 12,000 dollars. And that the defendant offered evidence to prove that he had distributed to the plaintiff about 2500 dollars, and had paid in discharge of debts against the estate of the decedent, and distributed the farther-sum of 2500 dollars.
    When the cause came on in the Superior Court, it was, by consent, heard upon the evidence in the record brought from the County Court; and the Superior Court reversed the order and judgment of the County Court; and proceeding to give such judgment as the County Court should have given, directed that the appellant, as administrator of Robert Bailey deceased, should execute a bond, with other good security, in the penalty of 9000 dollars, with condition as the' law directs; and upon his failure to execute, the bond, that his powers as administrator as aforesaid be revoked. Atkinson excepted to this opinion of the Court; and applied to one of the Judges of this Court for a supersedeas, which was awarded.
    Meredith, for the appellant.
    1. The County Court erred in requiring a new bond of the administrator, in a penalty equal to the penalty of the original bond. A new bond may be required, *upon the complaint of a security, under the 38th section of the act. But this is a proceeding under the 41st section, which, upon the complaint of one interested in the estate, that the security to the original bond is “insufficient,” authorizes the Court to require “other good security.” The simple question, then, is as to the “insufficiency” of the security. The 21st section requires the penalty of the bond to “be equal to the full value of the estate at the least.” This furnishes the standard of sufficiency. If the security is equal to the value of the estate, there is no cause of complaint, and no remedy to be applied. The bill of exceptions in the record shews, that the penalty of the original bond was double the value of the estate, and that but a small portion of the security had failed. It is true the bill of exceptions states, that “evidence was offered to prove” that others of the sureties had failed. It should have stated the facts proved, and not the evidence offered; for the appellate Court cannot weigh the evidence offered. It thus appears from the record, that the security was more than “equal to the full value of the estate,” consequently that it was not “insufficient,” and that no “other security’ ’ was required; clearly not to the amount of the original bond. This was requiring quadruple security, and virtually deprived the administrator of his right to administer the estate.
    
      2. The Circuit Court erred in attempting to exercise the functions of the County Court by requiring a bond for “other good security” to be given by the administrator before its clerk. It thus assumed a jurisdiction which belonged to the County Court. The County Court, by granting administration on this estate, took possession of the subject, and appropriated it to itself. It thus absorbed all power over this subject, and no other Court could act upon it, except in an appellate capacity. This proposition is sustained by the general reasoning in the cases of Fisher v. Bassett, 9 Leigh *119; and Burnley v. Duke, 2 Rob. R. 102. The simple , question then • is,
    what is its appellate power over the subject? That power authorizes it to revise and correct the proceedings of the inferior Courts by sending back the case to that Court, for it to enter the corrected judgment. If that judgment be entered in the Circuit Court, that Court takes charge of a subject which the County Court, bj' its previous action, had placed under its jurisdiction. It thus trespasses on the jurisdiction of the County Court. In this case, by the judgment of the' Circuit Court, two bonds in different Courts would have been required for the administration of the same estate. The course here suggested is pursued in relation to mills. The judgment of the Circuit Court is sent back to the inferior Court, to be entered there, and for the subsequent proceedings to be had there. See Eppes v. Cralle, 1 Munf. 258. Nor is the appellate jurisdiction of the Circuit Court enlarged by the 60th section of the act concerning Circuit Courts. That section restricts the power by confining it to cases of writs of error or supersedeas. This is an appeal. But the 41st section, under which this proceeding is had, removes all doubt. It requires that the “insufficiency” of the security “shall appear to the Court having granted letters of administration,” and it shall be lawful for “such Court,” upon a proper case, “to revoke or annul the power of the administrator;” and if necessary, to “appoint an administrator de bonis non in the same manner as if such administrator were dead.” The manner of appointing an administrator de bonis non is pointed out by the decision in Ex parte Lyons, 2 Leigh 761. That case decides that where administration of a decedent’s estate has been duly granted by a Court of competent jurisdiction, that same Court only, on the death of the administrator, has jurisdiction to grant administration de bonis non. In the case before the Court, the Circuit Court would have had power, by its *decision, to appoint an administrator de bonis non, which
    is against the authority of Ex parte Lyons. Eor these reasons, its decision was clearly wrong and should be set aside, and the cause sent back to the County Court for further proceedings on the petition.
    Stanard, for the appellee.
    The judgment of the Circuit Court is right, or if erroneous, it is erroneous against us. The proofs shew that in nine months the security was reduced one half. This fact shews the propriety of the rule which requires the security to be in double the amount of the estate. The act does not fix the penalty of the bond. It fixes the minimum, and leaves the precise amount to the discretion of the Court. The bond is intended, not only to cover the estate then in hand, but all which may afterwards come into the hands of the administrator. And if the discretion of the Court is wisely exercised in the first instance, in fixing the penalty of the bond and the security in double the amount of the estate, there must be the same reason for requiring the security to be kept in the same ratio to the estate.
    2. The order does not require the bond to be executed in the Superior Court. The Court takes up the case in its appellate character, reverses the judgment of the County Court, with costs; and then proceeds to give such judgment as the County Court should have given. If the clerk had added the words, “which is ordered to be certified to the County Court,” it would have been in precisely the form used in this Court. And without these words, if a copy of the order had been taken to the County Court, the order would have been entered there as ■readily without these words as with them. But if this Court is of opinion .that the Court below has erred in this matter of form, but that the judgment so far as it goes, is right, then the addition will be made here, and the cause sent back, with’ costs to the appellee, as the party substantially prevailing.
    *3. This case came up to the Circuit Court by appeal as of right; and it is therefore not properly before this Court, if the absolute right of appeal from the County to the Circuit Court does not exist. The act of 1831, Sup. Rev. Code, ch. 109, § 30, p. 145, limits the absolute right of appeal to a few specified cases; among which are, sentences or orders of the County Courts ‘in controversies concerning the probat of wills and letters of administration.” This is certainly not directly a controversy concerning letters of administration. It may involve the removal of the administrator, but that is not its object. That is to obtain securitj'.
    The question is not whether there is any mode of reviewing the judgment of the Court below, but whether there is a fight of arbitrary appeal. The policy of the law is to restrict this arbitrary right of appeal, and such appeals are intended to be re-tricted to those cases, in which the facts as well as the law is to be enquired into on new evidence. This is understood to be the view of this Court in the Chesapeake and Ohio Canal Company v. Hoye, 2 Gratt. 511. If this be the correct principle, the arbitrary right of appeal did not exist in this case. The act of 1819, 1 Rev. Code, ch. 69, 'i 56, p. 239, uses the language, ‘ ‘certificates for obtaining administration.” The language of the act of 1831 cannot be in-
    
      tended to be more extensive; unless we suppose, what we know was not the fact, that the act of 1831 intended to enlarge the arbitrary right of appeal.
    Lyons, for the appellant.
    On the last point made by the counsel, he relies mainly on a comparison of the acts of 1819 and 1831; and assuming that the right of absolute appeal would not exist in this case, under the act of 1819, infers it does not therefore exist under the act of 1831. But would it not have existed under the act of 1819? If an order is made revoking the letters of administration of *A, without appointing another, that order concerns the certificate of administration; and therefore, under the act of 1819, as well as that of 1831, the arbitrary right of appeal would have existed.
    If the grant of administration is made improperly, it is not questioned that this right of arbitrary appeal exists. Why, then, should it not exist, if on the next day the Court improperly rescinded an order granting administration?
    This act, in the same section and sentence, authorizes an arbitrary appeal from an order displacing a guardian or committee. Did it, then, intend to withhold it from an order displacing an executor or administrator; or were executors and administrators not specially named in this connection, because the language, “controversies concerning the probat of wills, and letters of administration,” was considered to embrace them?
    2. It is said that the error in the judgment of the Superior Court was merely formal, and the judgment was not intended to be final. The best evidence of the intent is the act of the Court. Bohn v. Sheppard, 4 Munf. 403, shews what is the form of the order when the case is sent back. The order of the Circuit Court does not indicate that the County Court was to do any thing; but itself concluded the whole matter.
    3. Upon the merits of the case, the whole question is, whether the security is sufficient in legal acceptation. The statute certainly does not require that it shall be for double the amount of the estate. Nor does it require that the penalty of the second bond shall be the same as that of the first. But it only requires that the security shall be sufficient: and surely that is sufficient security which is equal .to the whole of the estate in the hands of the administrator.
    
      
      The cause was argued before his appointment,
    
    
      
       Appeals. — See monographic note on "Appeals.”
    
    
      
      Executors and Administrators — Security.—See mon-ographic note on “Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6. The principal case is cited in Wilmoth v. Wilmoth, 34 W. Va. 438, 12 S. E. Rep. 735.
    
    
      
       The act, Sup. Rev. Code, ch. 109, § 30, p. 145, provides that appeals from the County to the Superior Courts shall be demandable of right, “from orders in controversies concerning mills, roads or the like; and from sentences or orders in controversies concerning the probat of wills and letters of administration, and concerning the appointing, displacing and controlling the guardians of infants, and committees of persons of unsound minds.”
      The act, 1 Rev. Code, ch. 104, § 41, p. 385, authorizes the Court which granted the letters of administration or probat, upon complaint of any person interested in the estate, when it shall appear that the securities given by the executor or administrator have become insufficient, either to require of the executor or administrator other good security for the performance of his duties, or to revoke his powers; and if necessary to appoint an administrator de bonis non, in the same manner as if the executor or administrator was dead ; or to commit the estate to the sheriff.
      The 21st and 35th sections of the act provides that before the granting the certificate of probat or administration, the executor or administrator “shall give bond in such penalty as will be equal to the full value of the estate, at the least, and with such security as shall be approved of by the Court.”
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the 30th section of the act establishing the Circuit Superior Courts, Sup. Rev. *Code, p. 145, which authorizes appeals as a matter of right, to the said Courts, from sentences or orders of the County and Corporation Courts, in controversies concerning the probat of wills, or letters of administration, embraces the case of a sentence or order made under the 41st section of the act concerning wills, intestacy and distributions, 1 Rev. Code, p. 385, revoking, whether absolutely or conditionally, for any of the causes in that section mentioned, the powers of the executor or administrator, with a view to the appointment in his stead of an administrator de bonis non, or the committing the estate to the sheriff. And, therefore, that the appeal in the present case from the County to the Circuit Court was not improvidently granted.

The Court is further of opinion, that by the 21st and 35th sections of the last mentioned act, directing that executors and administrators, upon their original qualification, shall give bond and security', in such penalty as will be equal to the full value of the estate at the least, it was intended that the Court should have a discretion in regard to the amount of the security; and that the general practice of requiring it in double the estimated value of the estate, is a proper exercise of that discretion; inasmuch as it provides, in a great measure, for unexpected accessions to the amount of the assets, and the insolvency or partial failure of some of the securities. But that the subsequent insufficiency of the securities, provided for by the 41st section of said act, is not an inability to pay the penalty of. the bond, but an inability to afford adequate protection to creditors, legatees, distributees, and other persons interested in the estate; and the other good security, which the Court is thereby authorized to require, is not contemplated to be in lieu of, or by way of substitution for, the former security', but in addition thereto: the former securities being in nowise exonerated. And that in determining the amount for which the other good security ought to be required, ^regard ought to be had to the value of the estate remaining unadminis-tered, including any accessions thereto beyond the original estimate thereof, and to the extent of the available security still furnished by the original bond.

And the Court is further of opinion, that, it appearing from the record there was no evidence introduced to shew' any diminution in the value of the estates of Talley, Jones and M’Ghee, three of the original securities, who had been estimated upon their affidavits, when received, as worth, after payment of their debts, respective sums amounting in the aggregate to 19,000 dollars, the County Court erred, under the circumstances of the case, in requiring the administrator to give other good security in the same penalty as the original bond, to wit, the sum of 48,000 dollars.

And it appears to the Court, from the record, that there was no new evidence introduced before the Circuit Court; but that the cause was there heard, by agreement of the parties, upon the evidence which had been introduced before the County’ Court, as stated in the record of that Court; which statement is defective in this, that it states the plaintiff offered evidence to prove diminution in the value of the estates of Prances Bailey, William Atkinson, and Elizabeth Atkinson, three others of the original securities, in respective sums amounting in the aggregate to 15,000 dollars, without setting forth that evidence, or stating what facts it proved; and in this, that it states the defendant offered evidence to prove that he had distributed to the plaintiff about the sum of 2500 dollars, and had paid in discharge of debts against the estate of the intestate, and distributed the further sum of 2500 dollars; without setting forth the last mentioned evidence, O'" stating what facts it proved. The Court is therefore of opinion, that the evidence before the Circuit Court was too imperfect to enable that Court, or this, to determine advisedly what additional security, if any, ought to be required of the administrator.

*And the Court, without deciding whether it was the intent of the Circuit Court, by its judgment, to direct the new bond and security which it required, to be taken in that Court, is of opinion that the order of an appellate Court requiring other good security from an executor or administrator, should be directory only, to the Court that originally granted the probat or administration: the latter Court alone having authority to receive the additional bond and security.

Therefore, it is considered by the Court, that the said judgment of the Circuit Court be reversed and annulled, with costs. And this Court proceeding to render such judgment as the said Circuit Superior Court ought to have rendered, it is further considered that the judgment of the County Court be reversed and annulled, with costs. And it is ordered, that the cause be remanded to the said Circuit Superior Court, and thence to the County Court, with directions to hear and decide the same de novo, upon such proper evidence as shall be introduced by the parties; and in conformity with the principles above declared: which is ordered to be certified to the said Circuit Superior Court.  