Davis v. Smith
Supreme Court of New Hampshire
Probate Appeal. Pacts found by a referee. The plaintiff and his brother were residuary legatees of their father. The plaintiff, being sole executor, gave the bond of a residuary legatee, and did not post a notice of his appointment at a public place. The defendant, who claims to be a creditor of the testator, has understood, ever since the testator’s death, that the plaintiff was executor.
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Probate Appeal. Pacts found by a referee. The plaintiff and his brother were residuary legatees of their father. The plaintiff, being sole executor, gave the bond of a residuary legatee, and did not post a notice of his appointment at a public place. The defendant, who claims to be a creditor of the testator, has understood, ever since the testator’s death, that the plaintiff was executor. After the lapse of three years, the settlement of the estate being completed, the residuary legatees being in bankruptcy, the real estate being held by innocent purchasers, and the defendant’s claim being…
1Opinion of the CourtFoster, J.
The only causes of the plaintiff’s removal were, his failure to post a notice of his appointment at a public place, and his giving a residuary-legatee bond, and no other. The only object to be accomplished by his removal is, to enable the defendant to avoid the statute of limitations, and obtain payment of his claim out of real estate now held by innocent purchasers. The defendant’s case is devoid of equity; and if, on other points, the law were with him, it would be necessary to consider the question of estoppel. But he does not stand in a position to deny the original or the continued…
2Cases cited2 opinions
- United States Tr. Co. of New York v. . U.S. Fire Ins. Co.New York Court of Appeals · 1858
- Wood v. . ChapinNew York Court of Appeals · 1856
3Cited by2 opinions
- Stone v. CraySupreme Court of New Hampshire · 1938
- Horne v. BancroftSupreme Court of New Hampshire · 1882