
    Wilkes Wood, Judge, versus Daniel Barstow Junior, Executor.
    A testator, after devising to his daughters te the use and improvement of my dwellinghouse, the two gardens," &c. bequeaths “ apples for their use, &c., wood sufficient for one fire delivered at the door, the use of a good cow kept on the farm summer and winter, after the death of my wife, during their remaining single, and a seat in my pew, which they are to occupy immediately after my decease." It was held, that this latter provision was a legacy ; but that it was for the personal accommodation of the legatees, and not assignable, and that they must actually occupy the dwellinghouse, in order to entitle themselves to demand a compliance with the bequest.
    A previous demand on the surety in a bond, is not necessary in order to- maintain an action upon it against him.
    This was an action upon a bond given by Jeremiah Stetson, executor of the last will of his father, as principal, and two sureties, conditioned for the payment of debts and legacies. The action was brought for the benefit of Elizabeth Stetson, by the plaintiff, in his capacity of judge of probate, against the defendant as executor of Samuel Barstow, one of the sureties.
    Upon a case stated, it appeared that the will of Stetson, the father, which was proved in 1803, contained the following clause : — “I give to my daughters, Mary Rose and Elizabeth, the use and improvement of my dwellinghouse, the two gardens before mentioned, apples for their use, green or to dry, wood sufficient for one fire, delivered at the door, the use of a good cow kept on the farm summer and winter, after the death of my wife, during their remaining single, and a seat in my pew, which they are to occupy immediately after my decease ; but in case either of them should die or marry, then it is my will that the remaining one should improve but one half of my dwellinghouse, with the other privileges above mentioned.”
    The widow of Stetson, the testator, died in 1819. Mary Rose married before the death of the widow, and her husband is still living. Elizabeth did not live in the house at the time of the death of the widow, nor was her domicil there. In 1822 she put a family into the house, and demanded of Stetson, the executor, and one of the sureties on the bond, who was then living in the house, that wood sufficient for one fire should be supplied to the family so put into the house, and that a cow should be kept for their use, but the demand was not complied with. In July 1829, Elizabeth, hav'ing moved into the house, demanded of Stetson, the executor, a compliance with the bequest made to her ; but he refused, alleging that he had parted with all his real estate, either by deed, or by the levy of executions thereon. No demand was made at this time on the sureties.
    If, in the opinion of the Court, this action could not be maintained, the plaintiff was to become nonsuit; otherwise the defendant was to be defaulted, and the damages were to be assessed by an auditor or by the Court.
    
      Oit. 26th.
    
    
      Beal and Eddy, for the plaintiff.
    The provision in the. will, in favor of Elizabeth Stetson, is in part a devise, but it is also in part a legacy, and therefore a compliance with it was secured by the bond. Farwell v. Jacobs, 4 Mass. R. 634 ; Baker v. Dodge, 2 Pick. 619. The privileges bequeathed to her were assignable ; and the demand made in 1822 was a valid demand. Wilder v. Whittemore, 15 Mass. R. 262 ; Marshall v. Blew, 2 Atk. 217; Doe v. Hawke, 2 East, 481. If that was not valid, the demand made in 1829 was certainly effectual.
    
      W. Baylies, for the defendant,
    said that the supposed legacy was only a charge upon the real estate, and therefore that this action could not be sustained ; he also objected that there had been no demand made upon the defendant, before the action was brought.
    
      Oit. 30th.
    
   Wilde J.

delivered the opinion of the Court. We think there can be no doubt, on the facts agreed, that this action is well maintained. The question is, whether there has been any breach of the condition of the bond. The condition is, that the executor shall pay debts and legacies ; and it is admitted that in the month of July 1829, Elizabeth Stetson demanded of the executor the legacy bequeathed to her, and that he refused compliance, averring his inability. That the provision in the will of Stetson the father, in favor of Elizabeth, amounts to a legacy, is clearly maintained by the cases of Farwell v. Jacobs, 4 Mass. R. 634, and Baker v. Dodge, 2 Pick. 619 ; if indeed any authority can be required to maintain a position so manifest. The provision contained a disposition of personal property, and the executor’s refusal to comply with this part of the provision, was a breach of the condition of his . bond.

The non-compliance with a previous demand made in 1822, did not amount to a breach, because Elizabeth Stetson did not then occupy the house provided for her in the will ; and the provision for supplying her with wood, &c. was clearly intend ed to depend on the implied condition of her residence in the house. It was a provision for her own personal accommodation, and not for that of any other tenant.

It has been argued, that an action cannot be maintained against the surety, without showing a demand on him. But from the nature of the surety’s undertaking, no demand on him was necessary. He undertook to be responsible for the performance of the condition by the principal. The legacy was therefore properly demanded of the principal. His refusal was a breach of the condition, and no further demand was re quired.

Defendant defaulted. 
      
       See Currier v. Earl, 13, Maine R. (1 Shepley,) 222, 223; Cracker v. Crocker, 11 Pick. 252.
     
      
       See Lord v. Lord, 3 Fairfield, 93.
     