139 Mass. 351 | Mass. | 1885
This is an action against a surety upon a probate bond given by the executors of the will of James K. Dewhurst. The writ is dated September 29,1880. The will of James K. Dewhurst contained the following clause: “It is my will that my son, Richard J. Dewhurst, shall, for the space of ten years from the time of receiving the same, have the use of the whole amount bequeathed to me by my sister, Elizabeth Dewhurst, he paying therefor three per cent interest for each year, compounded, principal and interest to be repaid to my estate at the end of ten years.” In two other places in the will the testator speaks of the amount of his sister’s bequest as “ said sum loaned to my son, Richard J. Dewhurst, as above provided,” and as “ the above-named loan to Richard J.; ” and it is clear that his intention was that his son should have the use of said amount as a loan to him from the estate for the period of ten years, upon the terms named in the will.
The will appointed said Richard J. Dewhurst and William ‘ Thompson executors, and they duly qualified by giving the bond in suit.
In July, 1869, Richard received from the estate of said Elizabeth three hundred pounds sterling. This sum was retained
Upon these facts, we are of opinion that the defendant is not liable as a surety upon the executors’ bond. At the resignation of Thompson and the death of Richard, there had been no maladministration of the estate. The sum of three hundred' pounds was properly lent to Richard, according to the will. He held it as a loan, to be repaid to the estate in the future. It was not present assets of the estate, but he owed a debt to the estate, not presently payable, which, when paid, would become assets. If, by the direction of the will, the money had been lent to a third person, not an executor, it is clear that it could not be treated as assets in the hands of the executors until it was repaid, and they would not be responsible for the solvency of the debtor. Although in this case the loan was to an executor, the principle is the same. The rule that, where a debtor to an estate is made executor, his debt is to be regarded as paid, and to be- treated as assets in his hands, has no application to such a case as this. Leland v. Felton, 1 Allen, 531. Pettee v. Peppard, 120 Mass. 522.
That rule cannot accelerate the payment of a debt due by an executor, and require him to pay it and treat it as assets before it is due and payable. Whether the rule would apply if Richard had lived until the debt became payable to the estate, we need not consider. He died, and his co-executor resigned, before the loan was payable. There was no default or maladministration by either of them which renders this defendant liable as their surety on the bond. The remedy of the administrator de bonis non is against the estate of Richard J. Dewhurst.
It appears that John Cochrane, appointed executor of Richard J. Dewhurst in New York, filed “ an account of Richard J. Dewhurst,” as executor, in the Probate Court for Middlesex
Judgment for the defendant.