
    DANIEL GOOKIN, Judge of Probate, vs. BETSEY HOIT et a.
    Xu general, no action can be maintained opon a probate bond for the benefit of any paiticuiar person, who is in?.*-re* ed in the estate of the deceased, unless such person has sustained some particular aggrievance, from the conduct of the executor or administrator.
    In a suit upon a probate bond, after a default, it appeared on a hearing in equity,, that the estate had bren represented insolvent, and a dividend decreed; and that the creditor, at whose instance the huit had been brought, had procured the ad-ministratrix to be cited to appear belore the judge of probate, and render a further account, which she had neglected to do ; it was held, that her neglect to appear might he considered as an admission of assets sufficient to pay all the debts, and as a refusal to pay the debt oí the creditor, at whose instance she had fceen cited ; and execution was awarded ior the balance due to him.
    This was an action of debt, upon a probate bond, given by Betsey Hoit, when administration of the estate of William H Hoit was committed to her.
    The defendants having been defaulted, it was moved on behalf of J. B for whose benefit this action had been brought, that execution should be awarded for the sum of §74,74, being the amount of the debt due from the estate of the intestate to the said J. B.
    
    This motion was founded upon a suggestion, that the estate of the intestate had been represented as insolvent; that the amount of J li’s. claim had been found by the commissioners tobe $>74,74; that personal estate to the value of $213,85, had come to the hands of the said administratrix, which she had never inventoried or accounted for ; and that having obtained license to sell all the real estate of the deceased, she had neglected and refused to sell a parcel of land, of which the intestate died seized, of the value of $800 It was further suggested, that if the sa'd personal estate had been duly accounted for, andthé said real estate sold, there would have been found to be sufficient estate to pay all the debts.
    Arid the question was, whether, admitting these suggestions to be true, execution ought to be awarded for the .amount of J. IPs. debt?
    $ D. Bell, for the plaintiff.
    
      French, for the defendants.
    
      By the court. Bonds are given to the judge of probate for the security of those, who are interested in the estates, to which they relate. But in suits on those bonds, individuals are not entitled to judgment, for their particular claims. Upon every breach of the condition. In certain cases, where the breach of the condition of the bond has been a particular prejudice to an individual, he may have such a judgment; and this is believed to be, in general, the utmost extent, in which (hat remedy has ever been applied. Thus a suit may be maintained upon a probate bond for the particular benefit of an individual, interested in the estate, in the following instances.
    1. When an executor, or administrator, having assets, and being, by law, bound to pay a debt, neglects or refuses to pay it, when demanded.
    
      2. When an executor, or administrator, refuses or neglects to pay, upon demand, a dividend ordered by the judge of probate, by a decree of distribution of an insolvent estate, to be paid to a creditor.
    3. When an executor, or administrator, neglects to pay, on demand, to an heir, a share in the estate, ordered by the judge of probate to be paid
    4 When an executor neglects to pay, upon demand, a legacy, which he is, by law, bound to pay.
    In Massachusetts, suits upon probate bonds are regulated by the statute of 1788, Chap. 55 ; and the following decisions of the supreme court of that state will be found to throw much light upon the subject. 4 Mass. Rep. 318, Selectmen of Boston vs. Boylston.—14 ditto 428, Prescott vs. Parker.—16 ditto 524, Robbins vs. Hayward.—13 ditto 365, Paine vs. Gill.—9 ditto 337, Dawes vs. Boylston.—9 ditto 114, Cony vs. Williams.
    
    Our statute of 1822, Chap 32, regulating suits on prohat® bonds, gives the remedy to persons “ aggrieved by a breach H of the condition ”
    In the case now before us, the creditor, for whose benefit the suit has been prosecuted, has received no prejudice, peculiar to himself, from the neglect of the administratrix — — No refusal to pay the dividend, decreed to be paid to him, ig suggested. The neglect of the administratrix, stated, is as direct an injury to every other creditor, as to him. It seems to us, that the remedy to be pursued by the creditor, for whose benefit this suit is brought, is to cite the administra-trix to appear before the judge of probate, and account for the estate she may have received, and for her neglect to sell the real estate.
    After the court had, at a former term, intimated to the counsel the foregoing opinion, the cause was continued, for the purpose of giving the creditor, who prosecuted the suit, an opportunity to cite the administratrix to account, in the probate court.
    And now it being admitted, that the administratrix had been duly cited to appear before the judge of probate, and render a further account, and that she bad neglected to appear, in obedience to the citation, Bell, for the plaintiff, contended, that her neglect to appear and account ought to be considered as a confession of assets sufficient to pay all the debts, and as a refusal to pay the debt of the party, at whose promotion this action was brought, and the citation issued.
    French, for the defendants,
    said, that it was not the intention of the administratrix to refuse to account ; but supposing, that the decision in the probate court would not be likely to satisfy both parties, and that in case she neglected to appear, the judge of probate would charge her with a sum, sufficient to pay all the debts, she had concluded to permit herself thus to be charged, and then bring the case, by appeal, to this court. i
   By the court.

Whether the judge of probate bad authority to charge the administratrix in her absence, as stated by her counsel, we are not prepared to decide ; nor is it necessary, at this time, to form any opinion upon that question. Being duly cited to appear before the judge of probate, and render a further account, the administratrix neglected to appear ; and, in our opinion, it is no apology for this neglect, that she ex ected to have been charged by the judge, and intended to have appealed from his decree, and to have brought the Subject before this court. The creditor, at whose instance the citation issued, was entitled to have her account rendered, on oath, in the probate court, without being subjected to the trouble and expenses of an appeal. And we think, that under the circumstances of this case, no injustice will be done, by taking her refusal to appear, and account, as an admission of sufficient assets, and as a refusal to pay the debt of the creditor, at whose instance she was cited to appear.

It is possible, that she may have acted under a misconception of her duty and if the sum, for which execution may be awarded in this case, were of any considerable amount, we might be disposed upon terms, to enable her to correct any mistake she may have made. But this is a hearing in equity after a default; and the defendants will, at all events, be liable to the costs of the suit, which will be increased by further delay ; and the balance due to the creditor, for whose benefit this suit is prosecuted, after deducting the dividend, decreed to him by the judge of probate, is so small that it seems to us, justice to all concerned, requires us to award execution, at this time, for that balance.  