The opinion of the court was delivered by
Kellogg, J.This was a suit upon a bond, executed by the defendants upon the taking of an appeal from the decree of the probate court approving the will of the late John Sargeant. The case was referred to referees, who submitted their report; and the county court having rendered judgment on the report in favor of the plaintiffs, the defendants excepted, and the case is brought to this court for revision. It is now insisted by the defendants, that the court below erred in allowing the plaintiffs the sum of $73,80, for extra costs by them expended, beyond the taxable costs, in defending against the appeal taken by the defendants, — and in allowing the farther sum of $19,92, for extra expense incurred by the plaintiffs, by reason of the appeal, in the taking a special administration upon the estate.
To determine whether the defendants are responsible for either or both the above mentioned sums, it becomes necessary to ascertain what liabilities they assumed, by executing the bond for the appeal. The condition of the bond is in conformity with the requirements of the statute, which is, that the appellant “ should prosecute his appeal to effect, and pay all intervening damages and costs occasioned by the appeal.” The appellant having failed in the county court to make good his appeal, and the will being there approved, and the plaintiffs having incurred the costs and expenses in the manner above stated, the question arises, are the defendants, upon their bond, responsible for those expenditures'?
1. As to the expenditure incurred in proving the will in the appellate court, over and above the taxable costs in that court; — It is quite clear, we think, that these costs cannot be regarded as intervening damages, within the meaning of the statute, and that, consequently, if the defendants are liable to them, it must be upon that clause in the condition of the bond, which subjects them to the pay*301ment of costs occasioned by the appeal. This clause, we think, only subjects them to the payment of such costs, as accrued in that suit; and this, we suppose, would be conceded by the plaintiffs; but they insist, that inasmuch as the extra costs were actually incurred in the prosecution of the appeal, they are covered by the bond. This proposition is untenable. The defendants, by their undertaking to pay the costs, became liable to pay the legal taxable costs in that suit. Such has always been held to be the liability of bail for a review, and for appeals from the judgments of justices of the peace; and we are not aware, that it was ever claimed, that they were chargeable with extra costs in the farther prosecution of the suits. Nor do we see any reason, why the defendants in the present case should, in this respect, be held to any greater or different liability, than bail for a review. There is nothing in the law, defining the liability of bail for an appeal from a decree of the probate court, to warrant a different conclusion. In the case of appeals from the decisions of commissioners of claims upon the estates of deceased persons, the appellant is required by law to file a bond similar to the present; and yet, we believe, the case has never occurred, in which the appellant, upon his failing to establish his claim in the appellate court, has been charged with the extra costs of the appellee. We are therefore of opinion, that the sum of f73,80, for extra costs in the prosecution of the appeal, was improperly allowed by the county court.
2. As to the sum of $ 19,92, — being the expense incurred in and about the special administration; — This sum, it is insisted, ought not to be allowed, for the alleged reason, that the administration was unauthorized by law, and that the same was entirely unnecessary. This position cannot be sustained. The appeal vacated the probate of the will, and during the pendency of the appeal, the will gave no authority to the executors, as such, to exercise any control over the property and estate of the testator. Their powers were thereby suspended. It therefore became necessary, and was the duty of the probate court, to appoint an administrator pendente lite, to take charge of the estate. Upon the probate of the will in the appellate court, the executors were restored to their former authority, and the authority of the special administrator ceased. This expenditure being, then, occasioned by the appeal, the question arises, are the *302defendants liable for it upon their bond? If liable, it must be upon the ground that it comes within the description of intervening damages. For we have seen, that under the term costs can only be included legal taxable costs, which accrued in the prosecution of the appeal. If, then, the terms intervening damages do not apply to a case like the expenditure now under consideration, to what do they apply ? for they must be supposed to have some application, or they would not have been inserted in the statute.
The term intervening damages, we think, must apply to some expenditure in and about the management of the estate, or some detriment to the same, occasioned by the appeal. The cost of the special administration was occasioned by the appeal, and was necessary to the due and proper care and management of the estate; and while we have some doubt and difficulty in extending the liability of the defendants to this item of expenditure, yet, upon .the whole, we are inclined to believe, that the same was properly allowed.
The result is, that the judgment of the county court must be reversed, and judgment entered for the plaintiffs for the sum of $19,92.