Estate of Murphy

Appellants seek writ of supersedeas to stay execution of an order terminating and distributing the corpus of a $2 million testamentary trust, pending an appeal from the order. The trial court granted a stay on condition that appellants execute and file an undertaking of $175,000. Appellants contend that they are entitled to an automatic stay without an undertaking and that supersedeas should issue as a corrective measure. ( Estate of Dabney, 37 Cal.2d 402, 408 [ 232 P.2d 481 ].) The issue before us is whether Code of Civil Procedure section 917.9 [1] authorizes an undertaking as a condition for a stay when the judgment appealed from does not require performance by appellants.

The problem is to determine the intent of the Legislature in its 1968 recodification of statutory provisions for stays pending appeal, in which former sections 942-949a were replaced by present sections 916-923. (Stats. 1968, ch. 385, §§ 1-2, pp. 816-820.) Former section 949, the counterpart of present section 917.9, provided that except as provided in sections 942, 943, 944, and 945, [2] none of which is applicable here, "the perfecting of an appeal stays proceedings in the court…