Forbes v. McHugh

Devens, J.

1. Even if it would have been an excuse for failing to return an inventory within three months, for the principal defendant to show that within that time he had not received any personal property of the testator, which we do not now deem it necessary to consider, it would not relieve him from his duty to return an inventory within a reasonable time when he did receive assets, and the failure so to do after he did receive them was a breach of the condition of his bond. It is not the less so because only one inventory is to be returned, and property thereafter received may be included in the executor’s account. Pub. Sts. c. 129, § 5; c. 132, § 5. Walker v. Hall, 1 Pick. 20 . Hooker v. Bancroft, 4 Pick. 50 .

2. The second ruling requested was, in substance, that if the debt due from the testator to the executor exceeded the amount of assets received by him, and no creditor had presented any claim within two years after the date of bis appointment, it was not a breach of the bond to omit filing an account. The terms of the bond required the defendant to file his account within a year, and the statute requires that, if any claim by the executor is disputed, it shall be submitted to the Probate Court. Pub. Sts. c. 129, § 5; c. 136, § 6. It is intended that such a matter as the claim of an executor for a debt due from the testator shall be settled in the account of the executor in the Probate Court, and that it shall be there passed upon and adjudicated. The executor cannot, by neglecting to comply with the statute, *414 insist that it shall primarily be determined in a suit brought upon his bond for non-compliance with its conditions.

The executor, after suit brought, filed an inventory and an account, and he urges that, if the evidence he offered was not admitted, the trial should have been postponed until action could be had by the Probate Court on the account. He does not appear by the exceptions to have made any motion that it should be thus postponed, and if he had done so, it would have been a matter within the discretion of the presiding justice. The condition of his account related also to the inquiry as to the amount for which execution should issue, rather than to the inquiry whether there had been any breach of the bond, which was the' only subject then before the court.

3. The defendant further requested a ruling, that the plaintiff could not maintain this action without showing that the party on whose behalf the suit was brought had sustained damage by reason of the omission to file either the inventory or the account. This was properly refused. It must be held that a party interested in an estate sustains damage when the acts which should have been done for his benefit, as well as for that of others interested, are omitted. Nor would it require ’ much argument to show that the legatee on whose behalf this suit is brought is injured actually when the executor fails to furnish him with the information to which he is entitled by failing to return his inventory and account. Exceptions overruled.