
    * James Prescott, Judge, &c., versus Jonathan Parker and Others.
    No action lies on a bond given by an executor for the faithful execution of his trust for the benefit of a legatee, to whom a personal legacy is bequeathed, and payable at a day certain, until after a demand of the legacy by the legatee upon the executor.
    This was an action of debt on a bond given by the defendants to the plaintiff, as judge of probate for this county, conditioned for the faithful execution, by the said Jonathan, of the .trust of executor of the last will and testament of David Parker, deceased.
    The defendants pleaded in bar, that the action was brought and prosecuted for the sole use and benefit of one Ebenezer Parker; and that the said Ebenezer is not entitled to get any part of the estate of the said testator, nor had he any interest, claim, or demand, in or upon the said estate, or upon the said Jonathan, as executor as aforesaid, excepting a certain legacy of one hundred dollars bequeathed to him, the said Ebenezer, in and by the said last will and testament; which said sum the said testator required the said Jonathan, executor as aforesaid, to pay to said Ebenezer in one year after the said testator’s decease; and the defendants aver that the said executor lias always been ready to pay and deliver to him, the said Ebenezer, the said legacy, according to the testator’s said direction in his said last will; but that the said Ebenezer has never made any demand or claim of or for the said legacy, of or from the said Jonathan, executor as aforesaid.
    To this plea in bar the plaintiff demurred generally, and the defendants joined in demurrer.
    
      Locke was to have opened the demurrer for the plaintiff, but the Court called on
    
      Hoare, for the defendants, who argued that, to support this action, instituted for the benefit of a legatee, a demand of the legacy upon the executor must be proved.
    The statute, in case of a bond given by an administrator, expressly requires that, in a suit on such bond, either for a creditor or for one entitled to a distributive share of the estate, a demand upon the administrator shall be * proved. It is also provided, in the same section of the statute, that “ the like proceedings (so far as they can wit 1 propriety take place) are to be had upon bonds of executors,’ &.c. 
    
    It is the proper duty of the legatee to demand his legacy, or at least to put himself within reach of the executor. He may be in a place unknown to the executor; or, as is the fact in the case at bar, he may be indebted to the testator’s estate, to an amount exceeding that of the legacy. It seems monstrous that, in such cases, the executor and his sureties should be held liable to a judgment for a penalty equal to the whole property of the testator. Although, by statute,  “ A person having a legacy given in any last will, may sue for and recover the same at the common law,” it is only after certain acts performed by the person having a claim upon an administrator or executor, that an action can be maintained on the probate bond.
    
      Prescott, fro se.
    
    The statute, which gives the action at common law for a legacy, does not require a previous demand on the executor. The remedy given on the probate bond is cumulative, and is to be decided upon the same principles as the action at common aw for the legacy.
    The cases, in which, by the statute, certain previous acts are required on the part of the party instituting the demand, are such as require a previous adjustment, to ascertain the amount actually due, except only the neglect to return an inventory. But where a sum certain is bequeathed, no previous adjustment is required; and it is a breach of the executor’s duty to secure the performance of which the bond is made, if he does not pay such legacy at the time prescribed by the testator, or on demand after a year, if no time of payment is prescribed. It is as incumbent on the executor to look up the legatee and tender him his legacy, as it is on a debtor to seek his creditor, and tender him his debt.
    In the case of Paine, J., vs. Gill Al. 
       the court said that the bond of an executor is taken expressly for the security of a legatee ; and that it is only to the case * specifled in the statute that the mode of adjustment there provided is to apply.
    
      
      
        Stat. 1786, c. 55, § 2.
    
    
      
      
        Stat. 1783, c. 24, § 17.
    
    
      
       13 Mass. Rep. 370.
    
   Per Curiam.

The question which this case presents is, whether an action can be maintained upon a bond given by an executor and his sureties to the judge of probate, for the faithful execution of the trust of executor, for the use and benefit of a legatee having a pecuniary legacy given him by the will of the testator, payable at a day certain, without proof of a previous demand. And we are all of opinion that such demand must be shown. From analogy to other cases where a demand is required, although it is not in this case expressly made necessary by the statute, yet we think the intention of the legislature may be presumed, that the executoi should not be liable to an action on the bond, until he was notified by a demand that the legatee intended to claim the legacy. Until such a demand, the executor cannot be reasonably said to have been guilty of a breach of his trust, or even of a neglect of duty.

The legacy being made payable at a fixed time, makes no difference as to this question. Whether, in such. a case, a previous demand would be held necessary to support the action for the legacy given by. our statute, has not been determined; nor is it necessary to decide that question in the present case. It seems to us, however, on general principles, that it would be considered an essential point in the case supposed.

In the case before us, the defendant’s plea in bar is adjudged good.  