
    Ephraim Chapin et ux., Appellants &c., versus John Hastings et al.
    
    A legacy is not a debt within the meaning of St. 1817, c. 190, § 17, which authorizes the grant of an administration de bonis non where there are u debts due from the deceased person unpaid.”
    On the 17th of September, 1795, Seth Murray made his last will, bequeathing £ 50 to Elizabeth Maltby, now Elizabeth Chapin, one of the appellants, to be paid out of the proceeds of a certain parcel of land which he directed his executors to sell, and making Isaac Maltby and his wife Lucinda Maltby residuary devisees and legatees. The will was proved on the 5th of January, 1796, at a probate court held within the county of Hampshire, and Isaac Maltby, who was also named as one of the executors, undertook to execute the will, and gave a bond for the payment of all debts and legacies. At a probate court held within the same county in February, 1823, the appellants presented a petition, stating that Maltby had deceased, and that the legacy to Elizabeth Chapin had never been paid to her; and praying that an administrator de bonis non, cum testamento annexo, might be appointed. The judge of probate having after-wards refused to appoint one, the petitioners appealed from his decree.
    And now Bliss senior, for the appellants,
    stated that it was agreed that Maltby, the executor, formerly lived at Hatfield in the county of Hampshire ; that he sold the land, from the proceeds of which this legacy was to have been paid, in 1810 or 1811, before the legatee came of age, which was in 1813 ; that since she came of age he had sold other land of the testator, and in 1818 or 1819 had removed into the State of New York, and had there died insolvent; and that no account of his administration had been rendered at the probate office.
    He cited St. 1817, c. 190, § 17, and contended that this legacy came within the meaning of “ debts unpaid ” in that section. He also referred to St. 1782, c. 25, § 2, and St. 1783, c. 24, § 19.
    
      Billings, contra,
    
    on behalf of a purchaser of a part of the testator’s real estate, cited Thompson v. Brown, 16 Mass. R. 172 ; Scott v. Hancock, 13 Mass. R. 162 ; Ex parte Allen, 15 Mass. R. 58 ; Powell on Dev. 303.
    The opinion of the Court was read at April term 1824, in Hampshire, as drawn up by
   Parker C. J.

The decree of the judge of probate is affirmed. By St. 1817, c. 190, § 17, it is enacted, “that administration of the goods or estate of any deceased person not administered upon by a former executor or administrator shall not be granted, until it shall evidently appear to the judge of probate, by the oath of the party applying, or otherwise, that there is personal estate of such deceased person, to the amount of twenty dollars or upwards, or debts of the like or greater value due from such deceased person unpaid.” Now it does not appear in any way that either part of this alternative exists. It is not alleged that there is any personal estate unadministered upon, nor is there any debt of any amount, unless the legacy given by the will to Elizabeth Chapin can be construed to be a debt, within the meaning of the statute; and we think it cannot, for in no sense can a legacy, which is a gift, be construed to be a “ debt due from the deceased person.” The proper remedy for the legatee was upon the bond of the executor, if the legacy has not been paid. And if this remedy is now lost, the great lapse of time without any demand made is probably the cause of the loss, and that is the fault of .the applicants. 
      
       But an action at common law also lies for the recovery of a legacy, under St. 1783, c. 24, § 17 ; either against an executor, after a demand made; Miles v. Boyden, 3 Pick. 213 ; or against a devisee or terre-tenant of lands charged with the payment of legacies, &c. Swasey v. Little, 7 Pick. 296 ; Felch v. Taylor, 13 Pick. 133.
      In Connecticut it has been decided, that assumpsit or debt will lie against an executor having assets, upon an implied promise. Knapp v. Hanford, 6 Connect. R. 170.
     