By order of the Surrogate, dated September 26th, 1884, this executor was directed to file a bond because of his non-residence within the State. The order contained this provision: “If the said executor fail to execute and file said bond within twenty days after the service of a copy of this order upon himself or his attorney, it is *197hereby ordered that the letters testamentary . . . . . be revoked and annulled.”
Before the expiration of these twenty days the executor perfected an appeal to the Supreme court. I am now asked to enter a decree absolute, revoking his letters testamentary, the twenty days having long since elapsed, and no bond having been, as yet, placed on file. To this the executor objects. His argument in opposition takes the form of .this dilemma : Either the decree of revocation for which the petitioner now asks is unnecessary, because the executor’s letters have already been revoked by the order of September 26th last, or the executor’s appeal from that order, within the twenty days it allowed him for filing a bond, operates as a stay of proceedings, and forbids the entry of the decree now sought to be entered.
The petitioner insists in opposition that, despite the appeal, he is entitled to the relief prayed for, in view of the provisions of § 2583 of the Code of Civil Procedure, which expressly declares that “ an appeal from a decree revoking letters testamentary does not stay the execution of the decree appealed from.” This, however, does not answer the executor’s objection. The order or decree already entered was “ a decree revoking letters,” or it was not. ■ If it was such a decree, no farther decree is necessary.
If it was not, then, despite § 2583, the appeal has operated as a stay.
Motion denied.