
    Marytta Stebbins et al. versus Samuel Lathrop.
    Thu judge of probate has authority, upon the application of any one interested in a will, to summon the executor, or other person having custody of it, to exhibit it for probate; the statute penalty for neglecting to exhibit a will, being merely cumulative. Thus it was held, that a creditor of the testator and of the executor and principal devisee, might claim to have the will exhibited for probate.
    So, it seems, the judge of probate may ex officio, or at the instance of any one, cause a will to be so exhibited.
    A will does not become void by the refusal of the executor to accept the trust Whether it would become void by the refusal of all the legatees and devisees to take under it, quceres but nothing short of an express renunciation, and that perhaps should be verified by the record, can be taken notice of in a court of probate»
    Whether a legatee or devisee can disclaim his legacy or devise to the prejudice of hia creditors, quaere.
    
    The widow and next of kin of a testator, being cited to show cause why the will should not be proved and administration granted cum testamento annexa, appeared and opposed the proceedings, but nevertheless, the judge of probate approved the will, and at tbe same time granted such administration to a creditor. It was held, that after the determination that administration should be granted, the widow, next of kin and the devisees should have an opportunity to elect whether they would take out administration, or yiéld it to the creditors.
    One died intestate, leaving a widow, child, and brother; the child died, leaving the widow its heir; and at the instance of a supposed creditor, the judge of probate decreed that administration should be granted on the intestate’s estate. It was held, that the brother had no right to appeal from the decree, but that the right belonged to the widow. See note.
    
    At a court of probate holden in the county of Hampden, in July 1824, Reuben Champion presented a petition, in which he set forth that he had a note for 1000 dollars, signed oy Benjamin and Miner Stebbins, which was due and unpaid ; that Benjamin had deceased, leaving a widow Marytta Stebbins and one child, but that the child had since deceased, whereby Marytta was the only heir at law to the estate of Benjamin; that no letters of administration had been taken out upon the estate, nor any will been offered for probate, so that the petitioner had no means of proceeding against the estate for the recovery of his debt, and that it was uncertain whether the property of Miner was sufficient to pay the amount of this note and his other debts ; that the petitioner had good reason to believe, that Benjamin left a will, in which Miner was named as executor, and in the event of the death of Benjamin’s child without issue, was made residuary legatee, and that the will was then in the hands of Miner, or of John Howard, as cashier of the Springfield bank; and he prayed that Marytta and Miner might he cited to appear at the probate court to be holden in August following, to show cause why administration upon the estate of Benjamin, with the will aimexed, or if no will should appear, why administration generally should not be granted to the petitioner, or some other suitable person; and that Marytta, Miner and Howard might be summoned to appear, and to bring with them the will of Benjamin, if in their hands, in order that it might be proved and allowed. An order of notice was made accordingly, and was duly executed ; and at the court of probate holden in August, Marytta and Miner appeared by their attorney. Howard also appeared, and delivered to the judge a writing purporting to be the last will of Benjamin, which was then, although objected to by Marytta and Miner, ordered to be filed with the register of probate. Marytta and Miner thereupon made answer to the petition, and prayed that it might be dismissed ; Miner offering in court to pay the note before mentioned, and all cost which had accrued on the petition and on any suit upon the note, and tendering the sum of 140 dollars for that purpose. Samuel Lathrop then represented to the judge, that by the last will of Dwight Lathrop, deceased, he was appointed one of the trustees of his estate, and that he held in his hands two promissory notes signed by Benjamin and Miner, one made to Dwight Lathrop in his lifetime for 2400 dollars, the other made after his death for the benefit of his estate for 150 dollars both "which notes were due ; and that Miner had absconded without making adequate provision for their payment; and he prayed that administration with the will annexed might be granted to some suitable person upon the estate of Benjamin. And S. Lathrop, with D. Ashley, executors of the last will of J. Ashley, and R. Champion, alleging that they were creditors of Benjamin, prayed that the witnesses to his last will might be summoned to appear at the probate court tobe holden in September 1824, to testify what• they knew relative to the will; which was ordered accordingly; and at the court so holden in September, the witnesses were examined, and the further consideration of the petition, and of the will, was referred to the probate court to be holden in November following. In November, the several parties appeared, and Champion further represented, that by the will, Benjamin’s estate, after the payment of a certain sum to his widow, was wholly devised to Miner; that he (Champion) held sundry notes against Miner, and that he knew of no means of enforcing the payment thereof, unless he could avail himself of the estate devised to Miner, and that until the estate of Benjamin should be settled, there would be difficulty m deciding how much of the estate would be requisite for the payment to the widow ; wherefore he prayed that administration on the estate of Benjamin, with the will annexed, might be granted. Marytta and Miner, by their attorney, objected to the proving and allowing of the will, and to the granting of administration, with or without the will annexed. At a probate court holden afterwards in the same November, the judge allowed the will, and granted administration with the will annexed, to S. Latbrop, Marytta and Miner u neglecting to take the same.” From these decrees, Marytta and Miner appealed, and filed their reasons of appeal; which will appear sufficiently in the arguments of counsel and opinion of the Court.
    By the will it is provided, that the testator’s widow, in lieu of dower, shall have his household furniture, — also the use of the house, in common with Miner, who is to support her and the testator’s infant daughter, unless the widow shall think it expedient to receive an annual sum instead, for their support; in which case, and if the daughter dies &c., Miner is to pay the widow 600 dollars annually durante viduitate, and to build her a house if she requests it, —that Miner shall keep her provided with a horse and chaise durante viduitate, —■ that if she shall marry again, he shall pay her 5000 dollars, but that in case of her death while a widow, the 5000 dollars shall go to Miner, — that a legacy of 10,000 dollars to the daughter shall, if she dies unmarried, or without issue, like wise go to Miner, and that he shall be residuary devise® and legatee, and sole execu+ni\
    
      The case was argued first at September term 1825, and afterwards in writing.
    
      Bliss and Bliss junior, for the appellants.
    The decrees o. the judge of probate ought to be reversed, first, because the will was not legally before him, so as to raise the question oí probate. He had no authority to order it out of the custody of the cashier of the bank, where it had been left for safe keeping, as a private paper, by one of the appellants. His jurisdiction commences when the will is duly filed. The only remedy, if the executor refuses to exhibit it, is the statute penalty; which is expressly confined to a person interested in the estate devised. St. 1817, c. 190, § 32. But if a widow, heir, or devisee, might have process to compel the production of a will, the judge of probate cannot issue it of his own motion, or at the suggestion of a stranger. Upon the face of this petition, it is apparent, that the. petitioners have no interest in this will.
    But, secondly, if- the judge had authority, at the suggestion of the petitioners, to order the will to be brought before him, he should not, upon the facts which appeared, have proceeded to have it proved and approved; since the executor, legatees, and devisees, and heir of the deceased, objected to the will’s being filed or proved, and they were the only persons who had a legal interest in it, or a right to be heard on the subject. It is clear, both by common law and by statute, that a person may refuse to be an executor. 9 Co. 37 ; 5 Co. 28 ; Toller, bk. 1, c. 2, § 3 ; Bac. Abr. Executors &c., E, 9 ; Off. Ex. 36, 37. It is also settled law, that the devisees were not bound to take under the will. The assent of the person who is to receive, is essential to all conveyances and contracts. In the case at bar an assent cannot be presumed. The heir at law has wisely elected to take by descent rather than by devise, and the other appellant, Miner. Stebbins, might well decline to accept a devise, accompanied with the conditions, limitations, and restrictions contained in the will. Plowd. 545 ; Shep. Touch. 452 ; Perk. § 569 ; 9 Co. 140; Fonbl. bk. 1, c. 3, § 12; Curtise and Cottel's case, 2 Leon, 72, pi. 97 ; 5 Vin. Abr. 508, Contract &c., D, pl. 1 ; Thompson v. Leach, 3 Mod. 296 ; S. C. 1 Show 216 ; S. C. 2 Ventr. 198 ; Bonifaut v. Greenfield, Cro. Eliz. 80; S. C. 1 Leon. 60; Co. Lit. 2 b, 3 a; Butler v Baker, 3 Co. 26 ; Cruise’s Dig. tit. 32, Deed, c. 2, § 29, ; Townson v. Tickell, 3 Barn. & Ald. 31.
    The petitioners claim in two capacities a right to set up this will, namely, as creditors of the deceased, and as creditors of Miner. 1. As creditors of the deceased they have no such right, for they have no interest in the will. Their title is paramount; so that it makes no difference to them whether the will be, or be not proved. Hays v. Jackson, 6 Mass. R. 149 ; Drinkwater v. Drinkwater, 4 Mass. R. 354 ; Willard v. Nason, 5 Mass. R. 240. 2. Neither have they, as creditors of Miner, any such right. The general principle, that a third person cannot interfere in a suit or claim, against the will of the claimant, is so well established, that it is incumbent on the appellees to show that they come within some known legal exception. There is no case which gives a creditor even an action against his debtor’s debtor , the utmost that has been-attempted is the process of foreign attachment. Vienne v. M'Carty, 1 Dalias, 154 ; Mitf. Pl. 115 ; Wiggins v. Armstrong, 2 Johns. Ch. R. 144 ; Hendricks v. Robinson, ibid. 283.
    It is, however, said, that the will must be proved, because where the executor renounces, administration is to be granted cum testamento annexa (St. 1783, c. 24, § 16) ; but this is pegging the question in dispute. The appellants contend, that at the time of making this decree, there was no will to be proved, or executed; that the refusal by the executor and devisees to accept, was a dying intestate ; it was as if the testator himself had by a formal instrument revoked the will, or made provisions rendering it wholly inoperative. The estate will be appropriated in the same manner as if no will had been made, and the duty imposed on an executor by law, independently of the directions in the will, can be performed by a general administrator. Hensloe’s case, 9 Co. 36 , Swinb. pt. 7, § 1, 19 ; Townson v. Tickell, 3 Barn. & Ald. 31 ; Shep. Touch. 461 ; Dyer, 236, pl. 27 ; Graysbrook v Fox, Plowd. 276 ; Toller (3d ed.), 115 ; 11 Vm. Abr. 67, 90, 111.
    
      It should here be remarked, that when such an adminis tration is granted, it must be to the widow, or next of kin, or one or more of the devisees, or in case of their refusal, to one or more of the principal creditors. St. 1783, c. 24, § 16 ; Toller, 86, 99. So also in appointing a general administrator, a preference is to be given to the widow or next of kin. Now admitting that administration, either with or without the will annexed, ought to have been granted in this case, the decree appointing Mr. Lathrop was wrong, because the widow and next of kin have never refused to administer. Administration has never been offered to them. They were cited to show cause why the will should not be proved, and why administration should not be granted, but were never cited, as they ought to have been, to take administrat'on They had a perfect right to oppose the granting of any admin istration, if they were satisfied that it was unnecessary, with out in any degree lessening their right to administer, in case administration should finally be decreed. St. 1783, c. 24, § 16 ; St. 1817, c. 190, § 14 ; Stebbins v. Palmer, 1 Pick. 78, in connexion with Gooch v. Gooch, 4 Mass. R. 348.
    
      E. H. Mills and Ashmun, for the respondent.
    It is said, that the only remedy for those interested in a will, which is not offered for probate, is the statute provision for a penalty. If so, a person , appointed executor of a will by which a large estate is bequeathed, may pay sixteen dollars a month, and secrete the will, and defy the legatees and the law. But if the parties have rights, they must have a remedy. All courts must have full power to compel the production of every paper which they may have occasion to use.
    The question then, as to where the will was found, and how it came into court, can be of no importance. Being in court, ought it to have been proved and allowed ?
    The note in the hands of Mr. Lathrop is a debt against the estate of the deceased; and to recover this debt, there must be administration of some kind. We say it must be with the will annexed: I. Because the only authority to appoint a general administrator, is “ after the decease of any person intestate.” St. 1817, c. 190, § 14. The first inquiry for the judge, on an application for administration, is, did the deceased die intestate ? If no will appears nor is suggested, perhaps he must decide that none exists. But if a suggestion entitled to credit is made, that there is a will, the fact must be ascertained. The appellants contend, that Benjamin Stebbins, though he did leave a will duly executed, yet in truth died intestate; that the will is made void in two ways ; and first, by the refusal of the executor to prove the will, which, in several cases cited, is said to be a dying intestate in law. In explanation of this we need only refer to Swinb. pt. 7, § 19. See also Swinb. pt. 1, § 6 ; Toller, 99; 3 Bh Comm. 503. The other ground is, that all persons interested in the provisions of the will, have refused to take or act under it, and it has thereby become inoperative. A sufficient answer to this is, that the will contains provisions for the infant daughter of the testator, who survived him. She has since deceased, but it cannot be maintained, that by the refusal of all the other objects of bounty, Benjamin S. is now intestate, when, for a long time after his decease, he clearly was not and could not be so.
    But, as another answer, the counsel for the respondent said, that by the evidence in the case, which it is unnecessary to state, it appeared that there had been no refusal by Miner S. of the devises in the will; and they contended, that a refusal to accept a devise must be by some formal act, as by deed or disclaimer of record. Townson v. Tickell, 3 Barn. & Ald. 31 ; Butler v. Baker, 3 Co. 26 ; Shep. Touch. 285 ; Thompson v. Leach, 3 Ventr. 198 ; Co. Lit. 111 a, Code Napoleon, liv. 3, tit. 1, sect. 2, no. 784.
    But supposing all this to be unfounded, we do not see how the judge of probate can decide the question of disclaimer. The will is before him containing the devise. Whether that devise is sufficient in itself, — whether it shall have any effect, — whether any rights have accrued under it, — should seem to be questions for other courts to determine.
    In no view, therefore, can the deceased be said to have died intestate.
    3. The administration must be with the will annexed, because the St. 1783, c. 34, § 16, expressly prescribes, that upon the refusal of the executor named, administration shall be granted in that form.
    This would seem to dispose entirely of the question of administration, cum testamento annexa; but the propriety of the decrees will also be shown by considering the claims of the creditors of Miner to a probate of the will.
    They say, 1. that the creditors of a devisee, legatee, or heir, are entitled to substitute themselves in his stead and avail themselves of the provision of the will, for the satisfaction of their debts, and that he cannot defeat them. If assent is necessary, they may assent for him. The equity of this position is beyond question. At the death of the ancestor, the freehold is cast upon the heir or devisee. He can divest Jiimself only by some formal act. This act, under circumstances which would avoid a conveyance, ought to be void for the same reasons. Code Napoleon, liv. 3, tit. 1, sect. 2, no. 784 ; Procter v. Newhall, 17 Mass. R. 81 ; Williams v. Amory, 14 Mass. R. 20 ; Atkins v. Bean, ibid. 404. 2. The refusal of Miner, and the proceedings in this cause are the result of collusion and agreement between him ana Marytta, to keep the property from the creditors, for his own use. But this question of fact is not to be argued here. It is enough for the creditors to show that they wish and expect to prove this claim ; and they ought to have an opportunity to make the attempt. Goodwin v. Hubbard, 15 Mass. R. 210. 3. Miner has accepted this devise. This also is "a question of fact, which cannot be definitely determined here, and which the creditors are entitled to the opportunity of trying in the proper forum.
    As to the appointment of Mr. Lathrop, the statute does not require that the widow &c. should be cited. It is sufficient if they have an opportunity to take administration and refuse it. Here they were present in court. They were cited to attend for the purpose of disposing of this whole subject. It substantially appears that they had sufficient opportunity, and that they have lost no rights.
    
      In reply, it was said, m respect to the provisions for the infant child, that by the event which had happened they were at an end; and further, that if an infant dies under age, his heir may dissent or accept for him, and that here the widow, who was heir to the child, did dissent. The question is to be considered as the facts stood at the time of the probate ; and at that time all the rights of the child were vested in the mother as its heir. This was in effect decided by this Court in the case of Miner Stebbins, Appellant, &c. v. Julia Palmer, in which it was held, that though Marytta was not directly next of kin to Benjamin, yet as heir to her child she was indirectly next of kin.
    
      Sept. 29th.
    
    As to the question of disclaimer, we admit that in order to determine whether a will shall be proved, the judge of probate has nothing to do with the meaning or operation of a particular devise ; but he must decide whether there ever was, or is at the time of probate, a valid subsisting will.
    No authority is cited to show, that by our law the creditors of a devisee or heir may substitute themselves in his .place, and that a man has no more right to refuse property descended or devised to him, than he has to give it away. How this may be in the case of a descent, it is unnecessary to inquire ; but in regard to a gift or devise, the authorities before cited contravene the position.
    
      
       Determined at September term 1822, at Northampton. Upon the petition of Julia Palmer, the judge of probate decreed that administration should be granted upon the estate of Benjamin Stebbins, then supposed to be intestate. Miner S. appealed, but this Court dismissed the appeal, on the ground that the appellant was not aggrieved, he not being a party interested. See Swan v. Picquet, 3 Pick. 443.
      
        E. H. Mills and Laihrop, for the appellee, cited Downing v. Porter, 9 Mass, R. 386; Penniman v. French, 2 Mass. R. 140. —D. Davis, Bliss, and Rice, for the appellant.
      Afterwards the widow of Benjamin, being then heir to her child, obtained leave to enter an appeal, and the decree was reversed. See Stebbins v. Palmer, 1 Pick. 71.
    
   Wilde J.

delivered the opinion of the Court. The appellants are the widow and brother of Benjamin Stebbins deceased, and are the principal legatees named in his last will and testament. They object as well to the probate of the will, as to the grant of administration to the defendant.

The objection first in order relates to the jurisdiction of the judge of probate, which, it is argued, did not attach until the will was filed in the probate office ; and that the anterior proceedings were therefore irregular and void. Perhaps it may be true, as the respondent contends, tlat this objection, though well founded, is immaterial, and does not invalidate the grant of probate. But we do not think that these proceedings were irregular. It has been contended, that the only remedy for a person interested in a will, if the executor refuses to exhibit it, is the statute penalty. But this position cannot be maintained. The statute remedy is cumulative and does not take away the rights of any party claiming under the will, nor the jurisdiction of the judge of probate. Any person interested in a will has a right to apply for probate of it, and the judge of probate, on such application, may summon the executor, or other person having the custody of the will, to exhibit it for probate. This authority in the judge of probate is incident to his general jurisdiction of the probate of wills, and the power of granting administrations. 3 Bac. Abr. 34Executors fyc., E, 1. It is said, the judge may ex officio, or at the instance of any one, cite the executor to prove the will, because the applicant may be ignorant of the contents of the will, and may expect a legacy, and has a right to be informed. 3 Bac. Abr. 40, Executors fyc. E, 8; Godolph. 60. Besides, the legatees or devisees may be absent or unknown; in which cases it is proper for the judge of probate to proceed ex officio, and to prevent the concealment, suppression, or loss of the will. And who can be injured by such an exercise of his authority ? Certainly no one ; for still the legatee, if he sees fit, may renounce his legacy. But suppose the law to be otherwise, still we are of opinion that the probate in this case was properly granted. Champion, upon whose application the executor was cited, was a creditor of the deceased, and also of Miner Stebbins, the executor and principal legatee. He therefore had an interest in the will, which authorized his application.

By our law, whoever has a right to offer a will in evidence, or to malee title under it, may insist on having it proved. A creditor therefore of a devisee has this right for the purpose of obtaining satisfaction of his debt; otherwise there might be a failure of justice. The executor might be disposed to impede or delay payment of the debt, and might enter on the estate and take the rents and profits without proving the will, and the creditors would be without remedy.

But the appellants contend that the provisions of the will have become void, first, by the refusal of the executor to accept the trust, and secondly, by the refusal of all the legatees and devisees to take under it.

As to the refusal of the executor, it is very clear that it does not malte void the legacies. The statute is express, that in such case administration shall be granted with the will annexed; and so is the law in England. Toller’s Law of Executors &c., (3d ed.) 42; Swinburne, pt. 6, § 12. So if a testamentary disposition of property be made, and no executor be named, administration with the will annexed sha” be granted. Toller, 98.

As to the other point, what would be the legal effect of a renunciation by all the devisees and legatees, we do not at present determine. Nothing appears amounting to a renunciation. But if this were doubtful, the question is not tc be settled in the court of probate. The respondent has a right to be heard on this point in a court of law, and he cannot be so heard if the grant of probate should be revoked. The most that appears at present is an intention to renounce: and even this is not very clear ; it is possible that the intention was merely to impede the creditors in the collection of their debts. Until the legatees shall actually renounce their legacies, their assent to the provisions of the will, which are apparently beneficial to them, will be presumed. Townson v. Tickell, 3 Barn. & Ald. 31. If they should persist in the intention to renounce the estate, the probate of the will will not restrain them. And then the question will be fairly raised, whether this can be done to the prejudice of creditors.

This being the light in which we view this point, it will not be necessary to determine whether the acts of the devisees will in law amount to a renunciation. It is sufficient to justify the proceedings of the judge of probate in this particular, that these acts taken together, especially the acts of Miner Stebbins, are equivocal, and that nothing short of an express renunciation can be taken notice of in a court of pro-, bate. And there seems no good reason why the fact should not be verified by the record, when the parties are present and may renounce if they are so inclined. No doubt a devisee may disclaim by deed the estate devised, as was decided in the case of Townson v. Tickell, 3 Barn. & Ald. 31, and perhaps he may disclaim without being subjected to the expense and trouble of executing a deed, as Holroyd J. seemed to think. But it does not follow that a court of probate shall receive evidence of such disclaimer, and most certainly not when the evidence relates to acts of a doubtful bearing. In the case of Proctor et al. v. Atkins, 1 Mass. R. 321, it was decided that a court of probate could not determine upon a claim set up by deed, because it was determinable exclusively at the common law. The same reason applies with force to the supposed disclaimer in this case.

The grant of administration stands on a different footing.

By the St. 1783, c. 24, § 16, [see Revised Stat. c. 63, § 5,] it is made the duty of an executor of a will, knowing of his being so appointed, to cause such will to be proved within thirty days, or to present the said will and in writing declare his refusal. And upon such refusal the judge of pro bate shall commit administration of the estate of the deceased, with the will annexed, unto any widow or next of kin to the deceased, or one or more of the devisees, or in case of their refusal, to one or more of the principal creditors.

If the executor refuse the executorship, his renunciation should be entered and recorded. A refusal by any act in pais, as a mere verbal declaration to that effect, is not sufficient. Toller, 42. So the refusal of the next of kin should appear of record. But it does not appear in this case, that they did refuse. They were heard on the question, whether the will should be proved and administration granted. And after the hearing, the case was continued for advisement, but it does not appear that they were even present when the will was approved and administration was granted. After the determination of the question, whether administration with the will annexed should be granted, the next of kin and devisees should have had an opportunity to elect whether they would take out administration or yield it to the creditors.

The widow and next of kin now claim the right to administer, and as their right is paramount to that of the creditors, and as they have done nothing amounting to a relinquishment, that part of the decree which relates to the granting of administration must be reversed. The residue relating to the probate of the will is affirmed. 
      
       See Revised Stat. c. 62, § 14; Smith v. Moore, 6 G-reenl. 274.
     
      
      
         See Williams on Executors &c. pt. 1, bk. 3, c. 6, vol.-l, p. 147
     
      
       See Williams on Executors &c., pt. 1, bk. 5, c. 3. § 1, vol. 1,p 283; Jackson v Jeffries, 1 Marshall’s (Ken.) R. 88.
     
      
       See Williams on Executors &c., pt. 1, bk, 3, c. 6, § 2, vol. 1, p. 153. The renunciation of an executor may be made by letter showing such m tention, provided it be filed in the proper office. Commonwealth v. Mattier 16 Serg. & Rawle, 416; Broker v. Charter, Cro. Eliz. 92; S. C. Owen, 44.
     