
    The Judge of Probate versus N. Emery and others, executors of John T. Gilman.
    A refusal, by an executor, who has assetts, to pay a legacy, to which he has assented, is a breach of the condition of a bond given to pay debts and legacies.
    Debt, upon a probate bond. It was alleged, in the declaration, that the testator, on the 19th May, 1814, by his writing obligatory, of that date, &e., acknowledged himself to be indebted to the plaintiff, in the sum of $50,000, to be paid to the plaintiff on demand ; yet the said testator never paid the said sum to the plaintiff, nor have the defendants paid said sum since the decease of the testator, but neglect so to do.
    The defendants craved oyer of the bond and of the condition, which was, in substance, that Nathaniel Gil-man, executor of Nicholas Gilman, should pay all debts and legacies of his testator, and faithfully discharge the trust of executor. They then pleaded, non est factum, and a general performance of the condition. The plaintiff replied, that Nicholas Gilman made his will, on the 9th September, 1811, and died, on the 2d May, 1814 ; that his will was duly proved and allowed, on 19th May 1814 ; that the said Nathaniel became executor, and had in his hands goods and estate enough to pay all debts and legacies ; that the said Nicholas, bequeathed, by said will, to Elizabeth Gilman, the interest of $10,000, to be paid to her, annually, during her life ; that the said Nathaniel assented to said legacy ; that said Elizabeth is still living, and on the 8th November, 1830, demanded of the said Nathaniel a certain sum then due, which he refused to pay.
    To this replication there was a general demurrer, and joinder in demurrer.
    
      
      Lawrence and Bartlett, for the plaintiff.
    Sullivan, for the defendants.
   By the court.

There are cases, in which a refusal to pay a debt, or a legacy, will not amount to a breach of the conditions of a common probate bond.

But we entertain no doubt, that a refusal, by an executor, to pay a legacy to which he has assented, is a breach of the condition of a bond to pay debts and legacies. 3 Mass. Rep. 252, Glover v. Heath; 3 N. H. Rep. 147, Claggett v. Hardy; 4 Pick. 380, White v. Stanwood; 6, ditto, 48, White v. Winchester; 9 Mass. Rep. 235, Lyman v. Clark; 14 ditto, 428, Prescott v. Parker; 9 ditto, 376, Prescott v. Petts; 4 ditto, 208, Dawes v. Swan.

Judgment for the plaintiff.  