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