156 Mass. 313 | Mass. | 1892
The substance of the amended declaration, so far as material to the question of law raised by the demurrer, is as follows. Joseph P. Tallón died in the year 1864, testate. By his will he gave the income of the residue of his property, which was about $10,000, to his mother, Ellen Tallón, for her life, and on her death the principal to his two brothers, James H. and Thomas A. Tallón, and his two sisters, Ellen and Margaret, in equal shares. Margaret is the plaintiff in the present action; and was entitled under the will to one quarter of the property
This is an attempt, by a legatee of a fractional part of the residue of an estate, in process of being administered in the Probate Court under a will, to recover of the administrator of the estate of the deceased executor of the will, in a suit at law, the amount of the legacy, without first having had any account taken in the Probate Court. No suit on the bond of the executor under the authority of the Probate Court has been brought.
The contention is that the action can be maintained under Pub. Sts. c. 136, § 19. See Cowdin v. Perry, 11 Pick. 503. It is clear that an action for a specific legacy, or for a definite pecuniary legacy, will lie against an executor or an administrator with the will annexed, but it may be doubted whether a legacy
Judgment affirmed.