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22 Iowa L. Rev. 155 (1936-1937)
Comments on Recent Cases

handle is hein.journals/ilr22 and id is 175 raw text is: COMMENTS ON RECENT CASES APPEAL AND ERROR-XECUTORS AND ADMISTRATORS-NECES- SITY oF APPEAL BOND--DuAL PERSONALITY DocTRNE.-Appellant, defendant below, is an executor, appealing as such from a surcharge placed against him on final accounting in probate court. Appellee is the widow of the deceased, and seeks to have the appeal dismissed because appellant did not put up an appeal bond as required by Minn. Stat. (Mason, 1927) § 8985 of those appealing as other than representatives. The same Code, § 8984, specifies that only a party aggrieved can appeal. Appellee won her motion to dismiss in district court, and this appeal is from that order. Held, that the appellant was not required to put up an appeal bond since he was a party aggrieved in his administrative capacity, although such surcharge ultimately affected him in his personal capacity. Re- versed. Clover v. Peterson, 267 N. W. 213 (Minn. 1936). In the case of a statute like that involved here, should an executor appealing from a surcharge be required to put up an appeal bond? The purpose of such a statute is to protect estates from the costs of defending ungrounded claims. M-Vinn. Stat. (Mason, 1927) subdiv. 2 of § 8985. An executor appealing from a surcharge in the guise of representative is obviously attempting to defeat the very estate he represents. Consequently the majority of courts hold, in construing similar statutes, that the purpose of the act is defeated by the allowance of such an appeal without bond. See Case, Administrator v. Nelson, 22 Ind. App. 22, 52 N. E. 176 (1898) ; In re Craig, 101 Neb. 439, 163 N. W. 765 (1917) ; Wiley, Executor v. Wiley, 69 Ind. App. 431, 122 N. E. 25 (1919) ; Allen v. Kinder, 150 Okla. 156, 300 Pac. 653 (1931) ; 3 WOERNER, AMERI- CAN LAW OF ADMnISTRATION (3d ed. 1923) 1804. The judgment is against the defendant, not the estate; she is the only person inter- ested in the appeal, and she is not entitled to prosecute the same without an appeal bond. In re Langdon, 102 Neb. 432, 433, 167 N. W. 571, 572 (1918). The principal case is contra to the majority as to result and, it is urged, wrong as to reasoning because by so hold- ing the court is protecting the executor rather than the estate which the statute was designed to protect. While the principal case was thus decided on the narrow basis of statutory construction, a broader problem was raised by the court's lengthy refutation of the dual personality doctrine. The court, conceding that it is going against the great weight of authority on this point, attempts to rationalize to a contrary view, citing an old Vermont case as hold- ing that a man cannot contract with himself. Gorham's Admr. v. Meacham's Admr., 63 Vt. 231, 22 Atl. 572 (1891). For cases showing why the legal fiction of dual personality should be upheld, in diversified factual situations, see Carleton v. Byington, 17 Iowa

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