Thayer v. Keyes

| Mass. | Nov 28, 1883

C. Allen, J.

While it is no doubt true that the testator expected the executor of his will to appropriate and set apart two thousand dollars out of his estate, and to place the same at interest well secured by mortgage, and that he looked to this fund so appropriated and set apart as the convenient source from which to pay the legacies now in question, it is nevertheless apparent that he did not mean to make the payment of them dependent upon the faithful observance of his directions in this respect by the executor. It is impossible to suppose that the testator intended to leave it within the power of the executor to defeat the legacies by a failure to set apart the money as a separate fund. The doctrine of the ademption of legacies by a disposition or loss, in the testator’s lifetime, of the specific property bequeathed, has no application to a case like the present, where the fund from which the legacies were to be paid was not in existence at the testator’s death, but was to be set apart by the executor out of the general estate. Nor could these legacies be considered as specific, even if the fund had then been in existence. Wilcox v. Wilcox, 13 Allen, 252.

It may perhaps be true, as contended by the defendant, that the omission of the executor promptly to obey the directions of the will in respect to setting apart and investing the fund was of itself a breach of the bond for which an action could have .been maintained for the benefit of these legatees. Although the widow, who was entitled to the interest of the money, was content to waive a strict compliance with these directions, and to accept in lieu thereof a bond for the payment during her life, it was nevertheless a continuing duty, resting upon the executor, down to the last moment of her life, to make the investment for the security of these legatees; and upon her death, it became his duty to pay to them at once the amount of their respective legacies. Even if they themselves waived the earlier duty of investing the money for their security, this would not have the effect to work a forfeiture of their right to call for the payment of the legacies. They might perhaps have maintained an action upon the first breach of the bond; but they may also maintain an action for any subsequent breach. A waiver of the first breach, or of any number of breaches, will not prevent them from suing on a subsequent one. It is well settled that an executor’s bond is a continuing obligation, commensurate in time with his duties, and each violation of it is a breach, and furnishes a cause of action. McKim v. Williams, 134 Mass. 136" court="Mass." date_filed="1883-01-09" href="https://app.midpage.ai/document/mckim-v-williams-6420811?utm_source=webapp" opinion_id="6420811">134 Mass. 136. Prescott v. Read, 8 Cush. 365. Loring v. Kendall, 1 Gray, 305, 313. See also Austin v. Moore, 7 Met. 116; Blair v. Ormond, 20 L. J. (N. S.) Q. B. 444, 453; Sanders v. Coward, 13 M. & W. 65, 71. The duty of paying the legacies arose within twenty years, and there was therefore a breach of the bond for which the action may be maintained.

Judgment for the plaintiff.