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The Judge of Probate versus N. Emery and others, executors of John T. Gilman
By the court.
There are cases, in which a refusal to pay a debt, or a legacy, will not amount to a breach of the conditions of a common probate bond.
But we entertain no doubt, that a refusal, by an executor, to pay a legacy to which he has assented, is a breach of the condition of a bond to pay debts and legacies. 3 Mass. Rep. 252, Glover v. Heath; 3 N. H. Rep. 147, Claggett v. Hardy; 4 Pick. 380, White v. Stanwood; 6, ditto, 48, White v. Winchester; 9 Mass. Rep. 235, Lyman v. Clark; 14 ditto, 428, Prescott v. Parker; 9 ditto, 376, Prescott v. Petts; 4 ditto, 208, Dawes v. Swan.
Judgment for the plaintiff.