
    Nathaniel Paine, Esq., Judge, &c., versus Moses Gill and Others.
    A devisee of real estate, which is taken from him by a title paramount to the testator’s, has his remedy for the value of the estate upon the bond given by the executor, being also the residuary legatee, for the payment of debts and legacies ; and this without a previous demand upon, or action against, the executor. f
    t Prescott, Judge, fyc., vs. Parker al., 14 Mass. Rep. 428.
    This was a writ of scire facias, brought to obtain a further execution upon a judgment heretofore recovered in this Court by the plaintiff, as Judge of Probate for this county, against the same defendants, upon a bond given to the plaintiff by the said Gill as principal, and the other defendants as sureties, conditioned for Gill’s faithful performance of the trust of executor of the last will and testament of Moses Gill, Esq., deceased. The principal in the bond being residuary legatee by the will, the condition of the bond was, that he should pay all the debts and legacies. Upon the formei suit upon the bond, a breach of the condition having been confessed, judgment was rendered for $ 100,000, being the whole penalty, and execution was issued for the sum of $ 5468.50, * being a sum found to be due from the testator to the Commonwealth.
    The object of this scire facias was, to obtain a further execution for $ 5000 upon the same judgment, in favor of one M. Brigden, to whom the said testator had devised a specific parcel of land ; of which he had been since evicted by a creditor of the testator, who had recovered judgment against the executor for a large sum of money, and whose execution had been satisfied in part by an extent upon the land so devised to said Brigden; for whose use the present suit is alleged to be brought.
    The defendants plead four several pleas in bar of the execution prayed for by the plaintiff.
    1. That the said bond was made to secure the payment of the debts of the testator, and of the legacies bequeathed by him in his last will; and that the plaintiff is neither a creditor nor legatee.
    2. That the plaintiff’s claim or demand, if any he has upon the said judgment, has never been determined, or the amount thereof ascertained, by judgment of any court, or the decree of any judge of probate, according to the law in such case made and provided.
    ■3. That no demand has ever been made by the plaintiff upon the said executor of the amount of the claim, debt, or damages claimed by him ; nor has the said executor neglected to satisfy the same, or to show goods or estate of the deceased for that purpose.
    4. That the plaintiff has never sued any action at law against the said executor, for any waste committed by him as executor, or for any unfaithful administration of the goods and estate of the said testator.
    To each of these pleas severally, the plaintiff replies, by reasserting the several allegations contained in his writ; and to each of said replications the defendants demur generally, and the plaintiff joins in demurrer.
    The cause was argued, at the last September term in * this county, by Bigelow, for the plaintiff, and Blake, for the defendants.
    
      Blake insisted,
    that the bond given in this case by the executor, he being also the residuary legatee, provided only for creditors to the estate of the deceased, and legatees under the will. The statute provides for such a bond only ;  and, if the bond in this case has another and further effect, it is wholly unauthorized, and cannot be enforced. The proper remedy for a devisee, who has lost the land devised to him by virtue of a paramount title or lien, is by action against his co-devisees for contribution. 
    
    The statute for regulating the proceedings on probate bonds, &c.,  contemplates a remedy only for creditors, legatees, and those entitled to distributive shares of the deceased’s estate.
    In the cases of Gore vs. Brazier,  and Wyman vs. Brigden,  this Court have given a judicial construction of the operation of this species of bond, and of the statutes relating to them, conformed to these positions.
    But, if Brigden is entitled to a remedy finally against the sureties In this bond, he must first sue the executor for waste, and ascertain by a judgment of court the amount to which he is legally entitled. Without such process, it will be difficult, if not impossible, to ascertain for what sum he shall have execution.
    
      Bigelow insisted,
    that the bond for paying debts and legacies covered this claim. Had the executor fulfilled the condition of the bond, Brigden's land could never have been taken from him. By his unfaithful administration, Brigden has sustained loss and damage to the value of his land, and he must be entitled to an indemnity in this mode. In Wyman vs. Brigden, the Court say, that a devisee thus injured may have his remedy by an action of waste. The action on the bond has the same effect; nor was a previous action of waste necessary, since the sum at which Brigden’s land was appraised to the creditor sufficiently ascertains the amount which he is entitled to receive.
    
      
      
        Stat. 1783, c. 24, § 17.
    
    
      
      
        Brigden vs. Cheever, 10 Mass. Rep 450.
    
    
      
      
        Stat. 1786, c. 55.
    
    
      
       3 Mass. Rep 523.
    
    
      
       4 Mass. Rep. 150.
    
   * The action standing over to this term for advisement, the opinion of the Court was now delivered by

Parker, C. J.

(After briefly stating the writ and pleadings.) The several pleas made by the defendants show the nature of the defence intended to be relied on ; and the general question presented is, whether this suit for a new execution can be maintained, in order to restore to Brigden the value of the land which he has lost by reason of the non-payment of the debt for which it was taken in satisfaction.

The defendants would contend, that a suit upon the probate bond would not lie for the use of any person, but those who come within the description of the statute which regulates the proceedings upon probate bonds, namely, creditors who have obtained a judgment at law for their debts, or an order of distribution in case of insolvency, or legatees who have made a demand of their legacies ; or unless a suit has been brought for waste, and judgment recovered thereon It is very clear, that Brigden does not make his claim good in either of these ways ; and, if it is necessary that he should, he has no remedy ; notwithstanding he has suffered the loss of valuable property, by the negligence or wilful refusal of the executor to perform the condition of the bond, by paying the debts of the testator.

But, upon examination of the statutes, we are satisfied, that the present suit may be maintained for the use of Brigden, upon the facts alleged in the pleadings. The condition of the bond being broken, as is established by the judgment thereon, all those who can establish a direct interest in that condition will have a right to recover their damages out of the penalty, which, by the judgment, is to stand as security for those who may be prejudiced by the non-payment of the debts of the testator. Certainly, none can have a more direct interest in the bond than Brigden ; who, if the condition had been performed, would have had an indefeasible estate in the land devised to him, which * estate has been defeated altogether, because the condition was not performed.

By the statute of 1783, c. 24, § 17, executors are required to give a bond, with condition to return upon oath a true and perfect inventory, and to render an account, in the same manner as administrators are required by law to do. But, if such executor should be residuary -egatee, the condition of the bond is to be, that he pay the debts and legacies of the testator. Such was the bond given by the executor in the case before us.

By the statute of 1786, c. 55, § 1, it is provided, that, whe i it shall appear, upon a hearing in Chancery upon an administration bond, for whose particular use and benefit the money for which execution issues is to enure, judgment shall be rendered for the plaintiff, who is always the judge of probate, to have execution for such part of the penalty for the use of such person ; and he-is to take out execution, and deal with it in the same manner as if he were plaintiff of record in the suit. Although this provision might seem to relate only to bonds given by administrators, yet it undoubtedly relates also to bonds given by executors. By this section there can be no doubt, but, after the judge of probate has obtained judgment on the bond for a breach of the condition, the Court may award execution to any one who shall satisfactorily prove, that he was entitled to an indemnity out of the penalty of the bond.

By the second section of the same statute, it is further provided, that, if the suit is instituted at the request of a creditor, he must first have his debt or damages ascertained by a judgment of court, and have made a demand therefor ; and, if the estate be insolvent, he must produce an order of distribution, and also have made a demand of his dividend. When the suit is brought at the suit of an heir, for his share of the personal estate, he must exhibit a decree of the judge of probate, ascertaining the sum he is entitled to, and he must also have made a demand^

* The inference drawn by the counsel for the defendants from these special provisions is, that a.party, whose claim is not of a nature to be ascertained in one or other of the above-mentioned ways, can have no benefit from a judgment upon the probate bond. But we apprehend, that it was not the intention of the legislature to leave other persons, equally interested in the estate of the deceased, wholly without remedy. No provision is made in this section for a legatee ; and yet the bond of an executor is taken specially for his security ; nor is any provision made for a case like the one at bar, where a specific devise is taken away in consequence of the failure of an executor to do his duty.

The inference drawn by us is, that all the cases of a direct interest in the bond are comprehended under the first section of the statute, and the sum due is to be ascertained by the Court in the usual way ; and that it is only to the cases specially provided for by the second section, that the mode of adjustment there provided is to apply ; and it may also be doubted, from the preamble to. the second section, whether the process there prescribed is not to be considered as directory only in the particular cases there specified ; and not as the condition upon which persons interested in the bond may obtain a remedy. The same may be said of the demand required by that section, as a prerequisite to the sustaining of the suit. In the case before us, which is to be governed by the first section, no demand was necessary. Judgment of forfeiture having been heretofore rendered, the sum due must be ascertained by the Court, so that a demand before the suit would have been wholly useless.

Replications adjudged good.  