Judge of Probate v. Kimball

Parker, C. J. The statute of July 2, 1822, provides that any person interested in a bond given to the judge of probate, and aggrieved by a breach of the condition, shall, on application to the judge of probate, have an order for a suit upon it. 1 N. H. Laics 371. Rut it does not require the judge to appoint a day of hearing, or cause a notice to be given to the obligors, before making such order. In many cases this might defeat the end proposed, viz : that of procuring security upon the institution of the suit. The matter rests in the discretion of the judge, whether or not to issue such notice before making an order, and this discretion is to be exercised according to the circumstances of the case. An order for a suit upon the bond does not conclude the obligors from denying a breach, or prevent them from setting up any matter which may show why judgment should not be rendered against them. The legacy in this case was not charged upon land, in the sense in which that phrase is used in the argument, and in the cases cited. All legacies are so far charged upon lands, in this state, by statute, that, in default of personal estate, the executor, as in the case of debts, may obtain a license from the judge of probate to sell so much of the real estate as shall be sufficient for the payment. 1 N. H. Laws 365. The legacy to Mrs. Leavitt is to be paid by the executor. If there is no objection to it, and the personal estate is insufficient, it will be the duty of the executor to procure a license for the sale of sufficient real estate, and to sell, and make payment. Should he refuse so to do, the non-payment after assent, or a judgment against him, would be a breach of the condition of his bond. But the will does not make this legacy a charge upon land, either expressly, or by implication. It was to be paid in one year after the decease of the two sisters of the testator. They had only the use of his personal estate during their lives. If, upon the decease of the survivor of them, there was sufficient of the personal estate remaining, that was the fund to be applied to its payment. [170] If there was a deficiency, then real estate must be applied to that purpose. The legatee cannot proceed directly against the land, or against the devisee, which he may do where the legacy is charged upon the land. 10 Wheat. 226, Wright vs. Denn; 6 N. H. Rep. 120, Pickering vs. Pickering; 2 N. H. Rep. 439, Piper vs. Piper; 3 N. H. Rep. 289, Gookin, Judge, vs. True; Veazey vs. Whitehouse, (10 N. H. Rep. 409;) 2 Pick. R. 619, Baker vs. Dodge; 1 Paige’s Ch. R. 32, Birdsall vs. Hewlett. Her remedy is upon the estate generally, through the administration of the executor ; and when he fails in the duty of making payment, she has a remedy upon the bond, in the same manner as creditors or heirs aggrieved by mal-administration. But it does not appear that he has yet failed of his duty, so that a judgment can now be rendered, in her behalf, that she have execution for the amount of the legacy. It does not appear that she has established her right to it by a judgment against the executor, or that he has ever assented to it, or even that there has been any demand upon him for the payment of it. It has been in no way liquidated. If it had appeared that the executor had assented to the legacy, then it would have been his duty to have paid within the year, or on demand after the expiration of it. If he contested the right of the legatee — upon a demand, after the expiration of the year, a suit might have been commenced, and upon the rendition of a judgment, establishing the right, it would have been his duty to make payment, and a neglect would have constituted a breach of the condition. But without assent, or judgment, or demand, there is no breach of the condition in that respect. 5 N. H. Rep. 68, Judge of Probate vs. Briggs; Ditto 69, Rogers vs. Wendell cited; 6 N. H. Rep. 141, Judge of Probate vs. Emery; Ditto 396, Judge, &c., vs. Locke; Ditto 422; 1 Williams’ Saund. 278, note 5.