‘On Motion for Rehearing and'to Certify.
Appellants, through able counsel, earnestly contend that this statement in the -original opinion is not supported by the undisputed facts: “The appeal by Mrs. Brooks from the County Court’s order of December 14, 1936, was to the action of ■such court in overruling her contest to the exhibit and final account of Sewall Myer, and in approving such exhibit and .account and discharging Myer from liability on his bond, but did not relate to the right of Myer to resign the representation of the Estate.”
A re-examination of the statement of facts convinces this court that appellants are mistaken, and that what they .differ with this court upon is the meaning that should be given to, not the existence of, facts fully vindicating the challenged recitation. These may be recapitulated, with citations to the statement of facts, as follows:
“(a) The County Court, on December 3, 1936, accepted Myer’s resignation ‘as of this date’, and relieved him from all ‘future conduct of said estate’. (S.F. pp. 23, 24).
“(b) On December 14, 1936, the same day the County Court again accepted Myer’s resignation and approved his accounts, Mrs. Brooks filed her application in such court, in which she stated that said Myer had resigned the further administration of the estate on December 2, 1936; that there was a vacancy in the office by reason of Myer’s resignation; that there was need for further administration ; and that the applicant, Mrs. Brooks, petitioned that court to appoint appellee, FI. L. Nicholson, as permanent administrator of the .estate. (S,F. pp. 48-53).
- “(c) In her affidavit of December 29, 1936, given in lieu of an appeal bond, Mrs. Brooks recited that her appeal was to the action of the court in approving Myer’s account and in overruling her exception thereto. (S.F. pp. 54, 55).
“(d) In her motion of January 2, 1937, filed in the County Court, Mrs. Brooks stated that her appeal was to the order of December 14, 1936, wherein such court approved Myer’s account and overruled her exceptions thereto. (S.F. pp. 66-69).
“(e) In its order of January 2, 1937, the county court stated that Mrs. Brooks’ appeal was to the action of the court in approving Myer’s account. (S.F. pp. 69, 70).”
In the second place, appellants’ motion seems inept- in its failure to refer to Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367, cited as supporting our original conclusions of law Nos. 1, 2, and 3.
Lastly, it is tbought the terms of R.S. Art. 3701 vindicate former conclusion of Law No. 4, wherein it is expressly stipulated that the affidavit there under dis*312cussion “* * * shall operate a perfection of the appeal in respect to the matter of .costs.”
Wherefore, it is concluded, the motion for rehearing, together with the alternative one for a certification of questions involved to the Supreme Court, should be refused; it will be so ordered.
The motion for rehearing and the motion to certify refused.