
    Nathaniel Paine, Judge, &c. versus Ruel Moffit
    Debt:onan administration bond, dated in 1814, against the heir and devisee of one of the sureties, the action being brought, according to the indoisement on the writ, for the benefit of an heir of the intestate : pleas, 1. performance ; and 2. that the surety died in 1819, and that letters testamentary were granted in the same year to his executor, and that the estate in the hands of the executor ought to have answered the bond : replication, that the administrators, in 1818, settled their first and only account, showing a balance in their hands, which was ordered to be accounted for according to law, but that the administrators converted the same to their own use and died insolvent; that in 1813 the intestate mortgaged his land to secure a debt payable within four years, but that the debt not having been paid, the assignee of the mortgage recovered possession of the land in 1830. Held, that the action could not be sustained, 1. because no substantial breach of the bond was set forth, the neglect to settle an administration account within one year not being assigned as such, and it not being alleged that the administrators were cited to settle a second account; 2. because the breach, if any, took place before the settlement of the estate of the surety was closed, and the claim should have been made against his executor; and 3. because there had been no probate decree ascertaining the distributive share of the heir who instituted the suit, and no demand thereof made upon the administrators.
    Debt on a probate bond, dated January 28, 1814, wherein Elihu Moffit and Lot Marsh were sureties, for the faithful administration of the estate of Asahel Hayward, by Elizabeth Hayward and Earned Hayward, the administrators.
    The action was brought against Ruel Moffit alone, as the heir and devisee of Elihu Moffit, the declaration alleging the death of the administrators and of Elihu Moffit.
    On the writ was an indorsement, that the action was brought for the benefit of Rufus Hayward, an heir of Asahel Hayward, and for an indemnity to Rufus on account of the maladministration of Asahel’s estate.
    The defendant, after oyer, set forth in his first plea the condition of the bond, which was in the form required by law at the time when the bond was given, and pleaded performance.
    For a second plea, he alleged that Elihu Moffit died in 1819, having made his will and appointed Sampson Earned his executor, who proved the will on July 6, 1819, and assumed the trust of executor, and gave notice thereof and fully administered Elihu’s estate ; whereby the executor was empowered and authorized to pay the bond, and the estate of Elihu in the hands of the executor became liable therefor, and ought to have answered the same, and not the defendant as heir and devisee of Elihu.
    The plaintiff replied, that Rufus Hayward, for whose benefit the suit was brought, was a son and heir of Asahel Hayward, and entitled to a distributive share, and that Elizabeth and Earned Hayward, the administrators, filed in the probate office a true inventory of Asahel’s estate, viz. real estate valued at $1500, and personal estate valued at $ 682-17, amounting in all to $2182-17, out of which real estate dower was assigned to Elizabeth on January 19, 1819 ; and that the administrators afterward, in 1815, obtained license to_ sell real estate to the amount of $711-67, for the payment of debts and charges, and in pursuance thereof sold divers parcels of the real estate, and the residue, exclusive of the dower, was assigned to Lamed Hayward by commissioners ; that on March 3, 1818, the administrators filed their first and only account, and charged themselves with the sum of $ 1379-44, of which the sum of $ 677-64 was the proceeds of the real estate sold, and the administrators were allowed $1136-94, leaving a balance of $242-50 ; and that the judge of probate decreed that the administrators should account for such balance according to law; and the plaintiff averred that they had never accounted for it, but had converted it to their own proper use, and had long since deceased wholly insolvent; and the plaintiff further alleged, that Asahel, on November 19, 1813, mortgaged to Andrew Sigourney, all his real estate, including the dower, as security for the sum of $ 250, to be paid in three years and nine months, and that in 1818, Sigourney assigned the mortgage to Ruel Moffit and others, and that on August 12, 1829, the mortgage never having been paid by the administrators, and the part of the real estate set off as dower being in the possession of one Morey, the assignees of the mortgage commenced a writ of entry against Morey for possession of that part and recovered judgment, and possession was delivered to them on April 20, 1830.
    
      Oct. 7th.
    
    The parties agreed, that in determining this action, the matters set forth in the" pleadings should be taken to be true, with the following additions and modifications. Lamed Hayward died in 1824, and Elizabeth, in 1829. No administration had been granted upon the estate of either of them, and neither of them ever rendered any second account of their administration, nor was either of them ever cited before the judge of probate to render such account, or otherwise requested thereto. The mortgage to Sigourney was, at the time of the purchase of it by the assignees, an incumbrance on certain real estate owned by the assignees, the title to which they derived from Asahel Hayward, and was purchased in by them to secure their title and to indemnify themselves against the incumbrance.
    Barton, for the plaintiff.
    The ground of complaint is, that $242-50, the balance of the funds in the hands of the administrators on the estate of Asahel Hayward, have not been applied towards the discharge of the debt secured by the mortgage to Sigourney. The action is brought by virtue of St. 1788, c. 66, § 5, which provides that where certain demands against the estate of any person deceased, arise by virtue of any contract, that could not be claimed until after the term allowed to the executor or administrator to settle the estate, the claimant may have his remedy against those who inherit the estate of such person, or the devisees thereof, against whom the demand lies, if such claim be made within one year from the time of its becoming due, and not against the executor or administrator.
    It is objected that the action should have been brought against the executor of Elihu Moffit. The answer is, that no cause of action existed against Elihu or his executor The eviction on the mortgage is the injury by which Rufus Hayward suffers. This action was brought in season, being within one year after the eviction.
    It may be said that no direct injury was caused by the fault of the administrators ; but as the injury was a necessary consequence of their neglect, the plaintiff in interest ought to have the benefit of the bond. It cannot be asserted that the facts do not show a breach in not disposing of the funds according to law, and if Rufus .Hayward shows that he is interested, in equity he is entitled to recover. Paine v. Gill, 13 Mass. R. 365.
    The plaintiff has not performed the prerequisites to bring himself within the 2d section of St. 1786, c. 55, regulating proceedings on probate bonds, but his case is not one of those specified in that section. His remedy is under the 1st section. No administration could be granted on the estate of either of the administrators, as neither of them left any property, and there was therefore no person on whom a demand could be made ; so that if a demand, pursuant to the 2d section is essential to maintaining the action, the plaintiff in interest is without remedy. Paine v. Gill, 13 Mass. R. 370.
    
      Tufts, for the defendant.
   The opinion of the Court was afterwards drawn up by

8haw C. J.

It is difficult to perceive any ground upon which this action can be maintained, for several reasons.

1. No substantial breach of the condition is assigned, if indeed any breach is assigned. Perhaps the not rendering ail account within one year, was a formal breach, if not excused or waived by some proceeding in the probate court ; but an account having been afterwards presented, received and acted upon, such breach would be merely nominal, and is not specially assigned as a breach in the replication.

If the failure to file a second account is relied on, it is answered by the fact agreed, that the administrators were never cited.

If the order of the probate court directing them to account for the balance of $ 242-50 according to law, be regarded as a decree of distribution, with which the administrators failed to comply, the answer is, there was no demand by the heir for his distributive share, and the non-payment of a distributive share is no breach of the bond, till after demand and refusal.

2. But if there was any breach, it happened many years ago ; the cause of action accrued before the close of the settlement of the estate of Elihu Moffit, the defendant’s father. The statute giving an action against an heir or devisee having assets by descent (St. 1788, c. 66, § 5,) expressly provides that no such action shall be sustained, except upon demands which could not be claimed before the expiration of the1 four years, during which the estate remains under administration, nor unless such action is brought within one year from the time the cause of action accrues. The only fact mentioned in the statement, as having happened within one year next before the commencement of this suit, is the entry of the assignees under Sigourney’s mortgage. But it does not appear that Rufus Hayward had any interest in the mortgaged premises, or if otherwise, how such entry would be a breach of the con- . dition. No cause of action appearing to have accrued on this bond, by any breach of the condition happening within one year next before the commencement of the suit, the limitation above stated appears to be a plain bar to the action.

3. But there is another objection which is decisive. It appears by the indorsement, that this action is brought in the name of the judge of probate, for the use and benefit of Rufus Hayward as an heir. It is therefore commenced in virtue of St. 1786, c. 55, § 2, on his own responsibility, in his own right, and without any authority or direction of the judge of probate.

In such case it is clear by the statute, and has frequently been so decided, that an action cannot be maintained, unless upon a demand settled and liquidated in the manner prescribed by the statute. ■ If a creditor, the party must first have his demand ascertained by a judgment, or in case of an insolvent estate, by the order of distribution ; if an heir, he must exhibit a copy of the decree of the probate court ascertaining the quantum, of his distributive, share, and show that he has made a demand thereof upon the administrator. St. 1786, c. 55, § 2 ; Robbins v. Hayward, 16 Mass. R. 524; Coffin v. Jones, 5 Pick. 61.

No such proceedings having taken place, no decree of distribution having been made, the heir, the indorser of this writ, has no right to come into this Court per sallum, and bring suit upon the • bond, without first taking the regular steps to have the estate settled in the probate court, obtaining a decree of distribution, and making a regular demand upon the administrator.

Plaintiff nonsuit. 
      
       See Fan v. Haven, 3 Metc 109.
     
      
       See Rev. Stat. c. 70, § 3, et seq.
      
     
      
       See Rev. Stat. c. 70, § 13, et seq.; Hall v. Bumstead, 20 Pick. 2.
     