Prescott v. Parker

| Mass. | Oct 15, 1817

Per Curiam.

The question which this case presents is, whether an action can be maintained upon a bond given by an executor and his sureties to the judge of probate, for the faithful execution of the trust of executor, for the use and benefit of a legatee having a pecuniary legacy given him by the will of the testator, payable at a day certain, without proof of a previous demand. And we are all of opinion that such demand must be shown. From analogy to other cases where a demand is required, although it is not in this case expressly made necessary by the statute, yet we think the intention of the legislature may be presumed, that the executoi should not be liable to an action on the bond, until he was notified by a demand that the legatee intended to claim the legacy. Until such a demand, the executor cannot be reasonably said to have been guilty of a breach of his trust, or even of a neglect of duty.

The legacy being made payable at a fixed time, makes no difference as to this question. Whether, in such. a case, a previous demand would be held necessary to support the action for the legacy given by. our statute, has not been determined; nor is it necessary to decide that question in the present case. It seems to us, however, on general principles, that it would be considered an essential point in the case supposed.

In the case before us, the defendant’s plea in bar is adjudged good.