As shown in the last paragraph of the original opinion by Mr. BOND, Chief Justice, the court overruled appellee's motion to dismiss the appeal for failure of appellant to post an appeal bond; this motion was based on the idea that resistance by the appellant to the termination of his trust relationship to the estate is purely personal, in no sense in a fiduciary capacity for the benefit of the estate, but rather for his personal benefit and against the best interests of the estate. If the court was correct in overruling the motion to dismiss the appeal, I am in perfect accord with the original decision and the reason therefor stated in the opinion of the Chief Justice; also am in accord with the disposition made of the case on rehearing, as shown in the opinion filed. However, on re-examination of the case on rehearing, I reached the conclusion that the court erred in overruling the motion to dismiss. I think the record shows that within the meaning of the statute no necessity existed for an administration when the will was probated, and none has existed since.
On the death of Mamie Grubbs, the sole legatee, Josie Birr, became vested with the property willed to her, and she was entitled to possess, manage and control same subject only to the rights of creditors and a proper administration for the purpose of paying debts. As independent executor, appellant had no duty to perform except to pay debts, notwithstanding his claim in the motion for rehearing that the payment of debts did not constitute his sole duty, and that he was likewise authorized to handle the estate, collect same and look after it in every respect deemed necessary by him. The management of an estate by an independent executor is none the less an administration under the law, and if no necessity exists, the executor has no duty to perform; in other words, as stated by Judge Brown, he is trustee of a simple passive or dry trust. The payment of claims against the estate by the legatee soon after the death of testatrix, freed the estate of debts and obviated all pretense of any necessity for an administration. If the executor has any proper charges against the estate, such as the attorney's fee that he claims, or others, the same may properly be adjudicated on final trial of this cause; but his continuous opposition to the closing of this estate obviously is personal and for personal ends, and not in the interest of the estate. I therefore think, as in any other ordinary litigation, he should have filed an appeal bond and is not entitled to the statutory immunity given an independent executor. The motion to dismiss, in my opinion, should have been sustained.