Desmond v. Fisher

25 N.E. 968, 152 Mass. 521, 1890 Mass. LEXIS 114

• Court: Massachusetts Supreme Judicial Court
• Decided: November 26, 1890
• Status: Published

Opinion

Holmes, J.

The plaintiff, being the executor of the will of Ann J. Lichtear, paid over to the defendant Fisher, her residuary devisee and legatee, three hundred and thirty-seven dollars and fifty-four cents, the amount of the residue, taking back from him the bond in suit. A part of this residue was the proceeds of land which the plaintiff had sold by license of the Probate Court. Before the sale, Fisher’s interest in the land had been attached in a suit against him, upon which a judgment was after-wards recovered. After the payment by the plaintiff to Fisher, the plaintiff was compelled to pay the amount of this judgment, we presume upon the doctrine of Wiggin v. Heywood, 118 Mass. 514, and Western Union Telegraph Co. v. Caldwell, 141 Mass. 489. The present suit is to recover indemnity for this payment. But the suit is brought upon the bond alone, the condition of which is only to indemnify the plaintiff from debts “due from the .estate” of Ann J. Lichtear. We cannot extend this condition by construction or conjecture so as to make it cover a debt due from the defendant Fisher. Judgment for the defendants.