In.order to render such an appeal valid, the statute requires that a bond shall be executed by the appellants with sureties, to be approved by the surrogate and be filed with him within three months of the time of making and entering the decree appealed from. (2 E. S. 10, § 56 ; id. 504, § 90.)
The first bond is defective because not executed by the *430appellants. The second bond does not mend the matter, because not filed within the required time. I must regard the decree as evidence of the time when it was made and entered, not conclusive, perhaps, for the appellants might be allowed to show a mistake in that regard, and when it was actually entered. But that is not shown in this case; the affidavit merely discloses a probability that it may have been made and entered a few days later than its date, but that probability is not enough to overcome the explicit evidence derived from the decree itself.
A more important question is, has the bond been amended, or, can it be?
If it can be amended, it can only be so on the application of the obligors and by the direction of the surrogate or circuit judge. No such application has been made, nor have either of those officers been called upon to pass upon such an application. To allow the second bond to be regarded as such amendment would be to give the parties the right to amend at pleasure, without the consent of the obligors and without the interposition of the proper tribunal. This power has not been given by the statute, and it will not do so to construe it as to take away from this matter the salutary supervision which the statute has itself provided.
Besides, the second bond has not been approved, and to regard that as the true one given on this appeal would be to remove another safeguard to the rights of parties which the statute has provided, namely, the supervision of the surrogate over the sufficiency of a bond taken in the absence of the party for whose benefit it is executed.
But I am inclined to think that the bond may be amended. I will not, however, now pass upon that question, because the appellants are not in a situation to present it to me. I will, therefore, reserve my decission on this motion to dismiss the appeal, until they can. have an opportunity of making a proper application to me or to the surrogate, as they shall be advised, for leave to amend the bond.