24 N.H. 400 | Superior Court of New Hampshire | 1852
Upon the facts appearing in this case, the question arises, how far Weare Tappan is entitled to be regarded as executor of the will of John Tappan, and to avail himself of the rights of an executor, in relation to his personal claims against the estate, and his claims for services, expenses, and commissions, in the capacity of executor.
The statute provisions on this subject, applicable to this case,
“ Sec. 2. Administration shall be granted to the executor or executors named in the will, being of age, and capable, if he or they will accept the trust.
“ Sec. 3. No person shall intermeddle with the estate of any person deceased, or act as the executor or administrator thereof, or be considered as having that trust, until such person shall have given bond to the judge of probate, with sufficient sureties in a reasonable, sum, upon condition, among other things, to return to the said judge a true and perfect inventory of the estate of the deceased, upon oath, within three months from the date of the bond, to administer the estate according to law, and to render to the said judge a full account of administration, upon oath, within one year; and to pay and deliver all the rest and residue of the estate, &c., as the judge, &c., shall appoint, &e. Provided, however, that if the executor to whom administration shall be granted, be also a residuary legatee, a bond with sufficient sureties may be taken from him, with condition only to pay the funeral charges, debts and legacies, and to render upon oath an account of his proceedings therein, when thereto lawfully required.”
These provisions are substantially the same now found in chap. 158 of the Revised Statutes.
The statute makes but one exception to the.rule that every executor shall give bond to administer according to law; the case of the executor to whom administration is granted, and who is also residuary legatee.
The appellant, clearly, was not such a residuary legatee. He could not intermeddle with the estate, or act as executor, or be considered as having that trust, until he has given a bond in the usual form, to administer the estate according to law.
The other executor of this will, John W. Tappan, was not residuary legatee. The rest and residue of the estate, “ in Claremont, aforesaid, wheresoever being,” was given to him, but
The bond is, besides, fatally defective and insufficient as. to both the executors, for the reason suggested by the appellant’s counsel, that it has but a single surety, while the statute, in express terms, requires sureties.
The position of the case, then, is this : the will has been proved, and a decree has passed that the executors named in the will be appointed to that trust upon their giving bond according to law. The only bond they could lawfully give, was to return an inventory, and administer the estate according to law. They have given no such bond; Their authority, inchoate by the will, remains in suspense, and so must remain, until such bond is given. The claim of the appellant was for the allowance of his private claim against the estate, and for the balance of his account as executor. The judge of probate had power to adjust and allow the accounts of executors against the estates they were empowered to administer, and no others. The appellant could not “ be considered as having the trust” of executor, because he had not given bond as required by law. The judge of probate has no jurisdiction, and therefore properly dismissed the claim.
The appellant having been appointed executor, has only to comply with the condition prescribed by the law, and he will then have the right to act as such, and must be considered as such, and it will afterwards be the duty, and within the jurisdiction of the judge, to allow any account which he may rightfully have against the estate.
Appeal dismissed.
