Prescott v. Morse

64 Me. 422

Opinion

Appleton, C. J.

Willoughby Prescott by his last will arid testament devised two hundred dollars in trust for his son George, and appointed Charles Morse, who has since deceased, as his executor.

No trustee was appointed for George Prescott, and the executor of the will of Willoughby Prescott never gave bonds as such trustee.

But Charles Morse gave bond as executor and in his life time settled one account in the probate office. The duties of an executor devolved, upon his decease, upon the administrator cum testamento annexo, who represents the deceased execntor. Farewell v. Jacobs, 4 Mass., 634. The executor of Charles Morse, whether executor by right or by wrong, does not represent the estate of Willoughby Prescott. That would properly be represented by an administrator cum testamento annexo, but none such has been appointed. As has been already decided, if the legacy remained in the hands of the executor of Willoughby Prescott, no action could be maintained against this defendant, as he is not authorized to settle or discharge the liabilities of that estate. Prescott v. Morse, 62 Maine, 447. Plaintiff nonsuit.

Walton, Dickerson, Barrows, and Daneorth, JJ"., concurred.