State ex rel. Thompson v. Wilson

Alvey, J., delivered the opinion of the Court. It can hardly be a question at this day, in this State, whether an action at law can be maintained on an administrator’s or executor’s bond, for the non-payment of a legacy, whether pecuniary, payable out of the general assets of the estate, or otherwise. The condition of the bond is, that the executor or administrator, as the case may be, shall well and truly perform the duties of his office, according to law, without any injury or damage to any person interested in the faithful discharge of such duties. Code, Art. 93, sec. 49. It is the duty of the executor, within thirteen months, to pay the creditors of the estate; and any surplus he may have on hand after the lapse of that time, he should pay out to legatees or distributees. Coward vs. Worrell, 7 Gill & John., 475. In this case, the bond in suit was given on the 10th day of September, 1866, and the action was brought on the 30th of September, 1872 ; more than six years from the date of the bond. The legacy sued for is made payable generally out of the assets of the estate, without contingency, or limitation as to time of payment. The breach of the bond assigned is, that, notwithstanding the executrix had sufficient assets, she had failed to pay the [343] legacy of one thousand dollars, bequeathed by the testator to the party for whose use the action is brought. By the failure to pay this legacy, after the lapse of thirteen months, the bond was forfeited, and the right to maintain an action on it in respect of the breach complained of, is too well established to admit of a doubt. This is abundantly shown, if authorities were needed, by cases cited by the counsel for the appellant, and to those cited, several others could be added. It is by no means necessary, as seems to have been supposed, that a previous order of the Orphans’ Courtshould have been obtained, to authorize suit to be brought on the bond; nor is it at all necessary that the plaintiff should allege that the estate has been fully administered, or that a final account has been settled in the Orphans’ Court, to entitle her to sue ; provided the legacy had become payable by the lapse of time within which the estate ought to have been settled. If any legal excuse exists for the non-payment of the legacy, such as the exhaustion of the assets in the payment of the proper debts of the estate, or the insufficiency of the assets to pay legacies, in due course of administration, such excuse or justification of non-payment should be pleaded by the defendant. What was said by the Court of Appeals in the case of Kent vs. Somervell, 7 Gill & John., 265, and which has been much relied on by the appellees, has no application to this case whatever. That was not an action on an executor’s bond, nor was it against an executor in his representative character; but, in the course of the opinion in that case, it was said that, as a general principle, an action at law will not lie against an executor to recover a pecuniary legacy payable out of the general funds of the testator, upon the mere assent of the executor to the bequest, on the ground that the law raises no implied promise by the executor to pay the legacy upon proof only of his admission of assets. This is certainly [344] true ; but tbe present action is not against the executrix for the recovery of the legacy, but is an action of debt upon her official bond, founded upon a breach of duty imposed by law, to secure the performance of which the bond was given. It became the duty of the executrix to pay the legacy, and her failure to do so, occasioned the breach of the condition of the bond, whereby the penalty became forfeited. The recovery in the action will be for the penalty of the bond, to be released on payment of such data ages as may be assessed in respect of the particular breach assigned; (Code, Art. 75, sec. 63,) and the legacy due, with such interest as may have accrued thereon, will be the measure of damages which the plaintiff will be entitled to have assessed. (Decided 2nd July, 1873.) The breach assigned in the declaration appearing to be sufficient to give the plaintiff a right of action upon the bond, the Court below was in error in sustaining the demurrer thereto by the defendants, and, consequently, the judgment must be reversed, and the cause remanded that the defendants may have liberty to plead. Judgment reversed and cause remanded.