Smith v. Wells

134 Mass. 11, 1883 Mass. LEXIS 213

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1883
• Status: Published

Opinion

C. Allen, J.

The devise to the husband was not specific, in any such sense as to exonerate it from liability for the payment of debts and legacies. Wilcox v. Wilcox, 13 Allen, 252. He, by proving the will, by accepting the position of executor, by giving bond, and by continuing to occupy the real estate left by the deceased, adopted, ratified and confirmed the will, and became bound to execute it according to its terms; and he and all persons claiming under him are estopped from setting up any claim or right which would defeat it. Hyde v. Baldwin, 17 Pick. 303. Smith v. Smith, 14 Gray, 532. 2 Story Eq. Jur. § 1077. 1 Jarm. Wills, (5th Am. ed., by Bigelow) 443. The legacies are not barred by lapse of time. Gen. Sts. c. 97, § 22. Pub. Sts. c. 136, § 19. It is not necessary for the legatees to resort to an action on the executor’s bond. The administrator may now do what it was the duty of the executor to do, namely, obtain a license to sell real estate for the purpose of paying the legacies. According to the agreement of the parties, therefore, the entry must be Decree of Probate Court affirmed.