Luce v. Luce ( 1977 )

SHANNON, Justice.

Appellant, Lily Luce, tendered the Clerk of this Court a transcript and statement of facts which the Clerk refused to file because the transcript showed that appellant did not file a cost bond. Appellant has filed a motion requesting this Court to order the record filed. We will overrule the motion.

Appellant appeals from the order of the county court of Burnet County which removed her as the administratrix of the estate of Howard Douglas Luce. Appellant did not file a cost bond. If a cost bond is required, the Clerk correctly refused to file the record since this Court would not have jurisdiction of the appeal.

Appellant claims that Tex.Prob.Code Ann. § 29 (1956) excuses her from filing a cost bond. Section 29 provides:

“When an appeal is taken by an executor, administrator, or guardian, no bond shall be required, unless such appeal personally concerns him, in which case he must give the bond.”

The genesis of § 29 is found in the second paragraph of Tex.Rev.Civ.Stat.Ann. art. 2276 (1971) which provides:

“Executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity.” (Emphasis added)

The emphasized'language in art. 2276 has been construed to mean that if the appeal concerns a matter personal to the executor, administrator, or guardian, such as an order removing him from one of those capacities, then such party is not taking the appeal in his fiduciary capacity, and, as a result, a cost bond is required. Powell’s Estate v. Mackey, 219 S.W.2d 156 (Tex.Civ.App.1949, writ ref’d); Wedgworth v. Roberson, 45 S.W.2d 427 (Tex.Civ.App.1931, writ ref’d).

The holdings in Powell’s Estate v. Mackey, supra, and Wedgworth v. Roberson, supra, are now codified in § 29. Because appellant appeals from an order personal to her, her removal as administratrix, she was required to file a cost bond.

Appellant’s motion is overruled.