Opinion of the Court-HADLEY, J.

[28 Wash. own volition, through his appeal, could re-create himself executor, with full power to settle and distribute the estate in defiance of the judgment of the court. We think the correct rule was announced in Estate of Crozier, 65 Cal. 332, 334 (4 Pac. 109). The court says:

"The Code provides for an appeal from the order of revocation, and therefore the statute keeps alive, ad interim, appellant's character as executor for the purposes of the appeal; but in all other respects the powers and functions of the former executor are suspended when the revocation is ended. (§ 1331). If his powers can be fully revived by an appeal, he can not only control the orders of the lower court, but, of his own volition, recreate himself an executor."

It was held in the above case that, inasmuch as the appeal did not revive the power of the executor, the court had power to appoint a special administrator to take charge of the estate pending the determination of the appeal. The case of In re Moore's Estate, 86 Cal. 72 (24 Pac. 846), is to the same effect, and, furthermore, intimates that, while it is within the power of the court to appoint a special administrator during the period of suspension by appeal, yet it has not power to appoint a general administrator during such period. In harmony with the California rule, relator here asked the superior court to appoint a special administrator to act pending the appeal; and it is urged as proper matter for review by certiorari here that the court appointed a general administrator, with the last probated will annexed, with full power to proceed to final settlement and distribution of the estate, notwithstanding relator's appeal. It is insisted by relator that he has no appeal from the order appointing the general administrator, for the reason that the order was made in an ex parte proceeding to which he was not a party, and that it is not an appealable order.

June, 1902.] Opinion of the Court-HADLEY, J.

It is urged that the order was not made in the original proceeding wherein the judgment appealed from was entered, but in a separate and independent proceeding, and that it was not, for that reason, an "order made after judgment which affects a substantial right." While the order may have been entered in a so-called separate proceeding from the other, yet it related to the same subjectmatter, viz., the estate of the deceased, and was in effect an order made after judgment which affected a substantial right of relator, since it authorized a distribution of the estate notwithstanding the appeal. While the proceedings may have been separately docketed, yet they should be considered as one, having in view the one end, viz., the settlement and distribution of the estate of the deceased. While relator may not have been formally made a party to the later proceeding, yet by his own volition. he became such through his petition resisting the appointment of the general, and asking the appointment of a special administrator. Treated as a separate and independent proceeding, he therefore bore such a relation to it as we believe would have entitled him to an appeal, and considering all orders as made in one proceeding, though he was not formally notified in the first instance of the later application, yet he had such actual notice and knowledge of the later order as one affecting a substantial right after judgment, by reason of his pending appeal, as we believe cast upon him the duty of appealing if he desired to review the action of the court in appointing the general administrator.

Our conclusion, therefore, is that the action of the court is not reviewable here by certiorari, and the writ is denied for the purpose of reviewing that matter. But while we may not review that matter here to the extent

Syllabus.

[28 Wash. of determining whether a general administrator should or should not have been appointed, yet it is made to appear that there is a possibility that the estate may be distributed by the general administrator before the appeal can be determined; thereby dissipating the fruits of the appeal, should the relator prevail therein. This, we think, should not be permitted by the court below. The status of the parties litigant should be preserved so as to prevent the fruits of the litigation from being lost pending the appeal, and, when it becomes necessary in aid of the appellate jurisdiction of this court, proper orders or writs will be issued to secure that end. State ex rel. Smith v. Superior Court, 26 Wash. 278 (66 Pac. 385).

We therefore decline to review the appointment of the general administrator, or to interfere with his custody of the estate, but it is ordered that the lower court shall direct him not to make distribution of the estate pending the aforesaid appeal. His functions will thus, for the time being, serve all the purposes of a special administrator, and preserve the estate for those who shall in the end be found entitled to it.

REAVIS, C. J., and FULLERTON, WHITE, MOUNT and DUNBAR, JJ., concur.

ANDERS, J., concurs in the result.

[No. 3983. Decided June 25, 1902.]

TOWN OF TUMWATER, Respondent, v. CHAS. HARDT et al., Defendants, G. NOSCHкA, Appellant.

OFFICIAL BONDS SIGNATURES OF OBLIGORS.

An official bond which was executed by a principal and his sureties by affixing their signatures to the justification which

followed immediately after the bond, upon the printed form, instead of signing at the end of the stipulations and conditions, was a valid bond, where the names of the principal and sureties were set forth in the body of the bond and it had been delivered and accepted by the obligors and obligee with the intent that it should constitute a binding obligation.

Appeal from Superior Court, Thurston County.-Hon. CHARLES W. HODGDON, Judge.

J. W. Robinson, for appellant.

Charles D. King, for respondent.

Affirmed.

PER CURIAM-Action by respondent, a municipal corporation of the fourth class, against the town treasurer and sureties upon his official bond. Under instructions of the court, a verdict was returned in favor of respondFrom an examination of the record and statement cf facts, we are satisfied that only one legal question is necessary for examination here. The official bond contained the signatures of the treasurer and his sureties in the justification to the bond, and was signed nowhere else. The paper was a printed official bond, with the conditions written therein, and the names of the treasurer and his sureties written in the body of the bond; but the names of the treasurer and the sureties were not signed at the end of the stipulations and conditions, where blank lines were left for such signatures. But on the same paper, and in continuous order, following the blanks for names, was the justification for the usual official bond. At the end of the justification were the signatures of the treasurer and his two sureties, affixed in the handwriting of each, and subscribed and sworn to before the town clerk; and immediately following was the official oath of the treasurer, subscribed and sworn to by him before the town clerk. It is urged by counsel

for appellant that the bond was not signed by the sureties or principal; that the justification was no part of the bond, and had no relation to it; therefore, that plaintiff's cause of action failed, and judgment should have been entered for defendants. Section 998, Bal. Code, provides, relating to such bonds:

"All the provisions of any law of this state relating to the official bonds of officers shall apply to such bonds, except as herein otherwise provided.”

Section 1526, Bal. Code, prescribes that, unless otherwise especially provided, there shall be at least two sureties upon the official bond of every officer. Section 1527 provides for the justification of the sureties upon the bonds of other officers. Thus, it may be observed that the signatures to the justification were authorized by law and a doubt cannot be entertained that the defendants executed the bond intentionally. The position of the justification and their signatures conclusively establishes the execution of the paper. We are satisfied from the evidence that the bond was properly delivered and accepted by the plaintiff, and the liberal provisions of our statute prescribing the effect of an official bond confirm the efficiency of the bond before us.

The case of Yakima Water, etc., Co. v. Hathaway, 18 Wash. 377 (51 Pac. 471), is in point here. In that case an appeal bond to this court was attacked because the sureties had only affixed their names to the justification on the bond, and had not signed the paper in any other place. It was held that the signatures to the justification, where the names appeared in the body of the instrument, were sufficient, and the bond was valid.

The conclusion that the bond in suit is valid must affirm the judgment.