Judge of Probate v. Locke

RichardsoN, C. J. delivered the opinion of the court. The replication, in this case, is insufficient. In general, a refusal to pay a debt, or legacy, is not a breach of the condition of a probate bond. 5 N. H. Rep. 69; 6 ditto, 142. But a refusal to pay a legacy, to which an executor has assented, is a breach of the condition of a bond to pay debts and legacies. 6 N. H. Rep. 141. And, in this case, perhaps, if the executrix had admitted the debt to be justly due, and then had afterwards refused to pay, it might have been considered a breach of the condition of this bond. But no such admission is disclosed in this case. The course to have been pursued by the creditor, was, to bring a suit and have the validity of his claim settled by a judgment, and then a refusal by the executrix, to sat [397] isfy the judgment, would have been a breach of the condition of the bond. . But a refusal to pay a debt, which she considers barred by the statute of limitations, is no breach of the condition of this bond.