Judge of Probate v. Emery
Superior Court of New Hampshire
Debt, upon a probate bond. It was alleged, in the declaration, that the testator, on the 19th May, 1814, by his writing obligatory, of that date, &e., acknowledged himself to be indebted to the plaintiff, in the sum of $50,000, to be paid to the plaintiff on demand ; yet the said testator never paid the said sum to the plaintiff, nor have the defendants paid said sum since the decease of the testator, but neglect so to do.
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Debt, upon a probate bond. It was alleged, in the declaration, that the testator, on the 19th May, 1814, by his writing obligatory, of that date, &e., acknowledged himself to be indebted to the plaintiff, in the sum of $50,000, to be paid to the plaintiff on demand ; yet the said testator never paid the said sum to the plaintiff, nor have the defendants paid said sum since the decease of the testator, but neglect so to do. The defendants craved oyer of the bond and of the condition, which was, in substance, that Nathaniel Gil-man, executor of Nicholas Gilman, should pay all debts and legacies…
1Opinion of the Court
By the court.
There are cases, in which a refusal to pay a debt, or a legacy, will not amount to a breach of the conditions of a common probate bond.
But we entertain no doubt, that a refusal, by an executor, to pay a legacy to which he has assented, is a breach of the condition of a bond to pay debts and legacies. 3 Mass. Rep. 252, Glover v. Heath; 3 N. H. Rep. 147, Claggett v. Hardy; 4 Pick. 380, White v. Stanwood; 6, ditto, 48, White v. Winchester; 9 Mass. Rep. 235, Lyman v. Clark; 14 ditto, 428, Prescott v. Parker; 9 ditto, 376, Prescott v. Petts; 4 ditto, 208, Dawes v. Swan.
Judgment for…
2Cases cited3 opinions
- Lyman v. ClarkMassachusetts Supreme Judicial Court · 1812
- Glover v. HeathMassachusetts Supreme Judicial Court · 1807
- Claggett v. HardySuperior Court of New Hampshire · 1825
3Cited by2 opinions
- Judge of Probate v. KimballSuperior Court of New Hampshire · 1841
- Judge of Probate v. LockeSuperior Court of New Hampshire · 1833