56 A. 188 | N.H. | 1903
In this case, as in Judge of Probate v. Lane,
In this case, the defendants have not demurred to the specification, or otherwise admitted its allegations, and there has been no finding that the allegations are true. The plea which they have filed is of the nature of a plea in abatement. Their position is that an action cannot be sustained until after there has been a settlement of the administrator's account and a decree of distribution in the probate court. This position cannot be sustained. An action will lie at any time after there has been a breach of the bond, although parties in interest may not have their claims in the condition that will entitle them to the benefit of the security afforded by the bond. They may perfect their claims by proper proceedings pending at the time of the commencement of the the bond, or subsequently instituted. For a breach of the bond there can be only one judgment, and that must be the whole penalty, and stands as security for all parties interested, whether their names are indorsed on the writ or not. "It must follow, as a matter of course, that persons interested may be entitled to an award of execution, even although their claims were not perfected when the suit on the bond was brought, or even when the judgment was rendered, either by the proper decrees in the probate court, by judgment at law, or by assent of the executor." Judge of Probate v. Lane,
If the plea had been a denial of the alleged breach of the bond, the question presented would be the same as that decided in the Lane case when it was before the court the second time (
Exception overruled.
WALKER, J., did not sit: the others concurred.