White v. Webster

30 Mass. 374

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1832
• Status: Published

Opinion

Per Curiam.

The first question on this statement is a question of strict law, namely, whether the facts stated prove a breach of the defendant’s bond. Sureties are liable only upon the default of the executors, in performing the duties imposed on them by law. A very different rule may apply when the parties come to a hearing in equity, after a breach of the bond, and a forfeiture of the penalty. In the present case, the Court are of opinion, that no forfeiture of the bond is shown. It is a general rule in the construction of the statute of this commonwealth regulating proceedings upon a probate bond, that no action will lie on the bond, to enforce the payment of any legacy or bequest, until a demand has been made on the executor, after the legal right to payment has accrued. In the present case the executors were not bound to comply with the demand made upon them in August 1830, because the estate had not then been settled. There were notes in their hands then remaining unpaid, and the executors were under no legal obligation to give them to the trustees uncollected. The four years allowed by law for the presentation of claims against the estate had not expired, and there might have been claims which the executors would have been liable to pay and of which they had no knowledge. Under the circumstances of the case it might have been reasonable for them to have entered into the arrangement proposed by the trustees, but they were not obliged by law to do so, and their non-compliance with the demand was no breach of their bond.

Plaintiffs nonsuit.