McIntire v. Parker

Braley, J. The defendant, having failed to file an inventory, or render an account, permitted the creditor to obtain a judgment, which after demand remained unsatisfied. Under R. L. c. 149, § 20, her probate bond, given without sureties, has been put in suit for his benefit, and in defence it is said that the deceased left no estate, and neither at the time of appointment, nor since, have any assets come into the defendant’s possession. By the conditions of the bond she undertook to pay, if demanded, and the estate was solvent, all debts, judgment for which had been rendered against her as executrix. ' Until its insolvency had been ascertained, and declared by a decree, the estate must be presumed and treated as solvent in suits by creditors, and the entire failure in fact of assets to satisfy the judgment is immaterial. Heard v. Lodge, 20 Pick. 53, 58. Newcomb v. Goss, 1 Met. 333. McKim v. Glover, 167 Mass. 280, 283. McKim v. Haley, 173 Mass. 112, 114. McKim v. Roosa, 183 Mass. 510. The defendant relies upon the case of Keith v. Molineux, 160 Mass. 499, as an authority sustaining her position. It there was held that the administrator having exhausted the assets in the payment of debts entitled to a preference, and his final account having been allowed by the Probate Court, the suit brought by the plaintiff, who was a common creditor of the deceased, could not be maintained. R. L. c. 141, § 5. But in the present case there has been no administration of the estate, and instead of a compliance with the provisions of R. L. c. 142, §§ 1, 2, by representing the estate of her testator as insufficient to pay all his debts, after full knowledge of its insolvent condition, she chose to remain inactive, and suffered judgment to be obtained. A failure to pay the judgment, therefore, was an [157] unjustifiable breach of the bond, and the judge correctly ruled that the plaintiff was entitled to judgment for the penal sum. McKim v. Haley, ubi supra. Exceptions overruled.