Cleaves v. Dockray

Dickerson, J. After making a nominal bequest to each of his children, the testator bequeathed “all of his property, both real and personal, of every name and nature, to his wife, Kate H. Dockray,” the principal defendant in this suit, who thereby became the residuary legatee as well as the executrix under the will. In such case the statute requires that the bond of the executor should be given according to B. S. c. 64, § 10, which differs materially from that [123] required of an ordinary executor, as provided in the preceding section, under which the bond in suit was given. A bond required by statute is not void, in all cases, as a statute bond, because it does not in all respects conform to the statute under which it is taken, as, for instance, when the bond contains all that the statute requires, and a further clause more favorable to the obligors than that the statute calls for (Van Deusen v. Hayward, 17 Wend. 67, 70); or when the condition in the bond is not more prejudicial to the obligors than one with a condition, in due form, would have been (Morse v. Hodsdon, 5 Mass. 314, 316); or the additional matter may be rejected as surplusage (Proprietors of Union Wharf v. Mussey, 48 Maine, 307, 312); or the bond is so drawn as to include all the obligations imposed by the statute, aud allow every defense given by law (Commissioners v. Way, 3 Ohio, 103); or where the bond is voluntarily given, and the portion of the condition in excess of that required by law is separable from that provided by the statutes. United States v. Mynderse, Int. R. Rec. 94, and Postmaster General v. Early, 12 Wheat. 136. In the absence of any statutory provision declaring a variance from the statute form fatal, such variance does not render the bond void when the condition does not impose upon the obligors a greater burden than the law allows. Commonwealth v. Laub, 1 Watts & S. (Pa.) 261. Baldwin v. Standish 7 Cush. 207, 209. In the present case the bond is defective in its provisions and omissions. It contains conditions not required by the statute, of an executor who is, also, a residuary legatee, and omits an important condition which the statute enjoins in such cases. It imposes burdens upon the executrix more onerous than the statute pro vides, and if the additional matter is rejected as surplusage, there is not enough left to meet the requirements of the statute. The bond, therefore, cannot be enforced as a statute bond. There are numerous cases, however, where bonds purporting to be given as statute-bonds, though invalid as such, have been held good at common, law. Bonds given by poor debtors, and public officers, injunction, and replevin bonds and bail bonds, are familiar instances of the application of this principle. Ware v. Jackson, 24 Maine, 166. Lord v. Lancey, 21 Maine, 468, 470. Clap v. Cofran, 7 Mass. 98, 100. [124] Sweetser v. Hay, 2 Gray, 49, 51. Stephens v. Crawford, 3 Ga. 499. Williams v. Shelby, 2 Oreg. 144. In the case before us the bond was approved by the judge of probate in its present form, and ordered to be recorded in the probate office. No appeal was taken from the decree of the judge of probate, allowing and approving it, and the executrix upon filing it received her letters testamentary, and acted under them by returning an inventory of the estate. It contains ample conditions and provisions to protect the estate from all real loss, and we know of no principle of law that would be violated by upholding it. On the contrary we think that it may be held valid at common law upon principle and authority so as to give legal effect to the appointment of the executrix and the ulterior proceedings of the judge of probate, and to afford security to all interested in the estate. Baldwin v. Standish, ante. Pettingill v. Pettingill, 60 Maine, 411. Abercrombie v. Sheldon, 8 Allen, 532. As this is a bond at common law, it can only be enforced according to the rules of the common law. The obligors are not liable to the provisions of B. S. c. 72, § 15, or for any penalties, but only for the actual damages resulting from a breach of the bond ; and the judgment for the penalty in the bond will stand as security for other damages, if any, that may hereafter be proved. Stephens v. Crawford, ante. But there is a fatal objection to maintaining this action in the name of the present plaintiff. There is no pi’omise to him, and he has no interest in the contract. The proznise was made to his px’edecessor in office. A successor in office to a judge of probate can maintain a suit on a bond given to his predecessor, only when . authorized by statute. The statute giving such authority applies only to bonds given in conformity to the statute. Lord v. Lancey, 21 Maine, 468, 470, and the cases cited are decisive of this question. Plaintiff nonsuit. Appleton, O. J., Barrows, Daneorth, YiRGiN-and Libbey, JJ., .concurred.