
    * James Prescott, Judge, &c., versus John Pitts and Others.
    Where a testator devised an annuity to his widow, and authorized his executor to sell lands sufficient to raise a fund, the interest of which should equal the annuity, the executor’s neglecting to raise the said fund was holden to be an unfaivhÁvl administration, and a breach of the condition of his administration bond.
    Debt on a bond given by the defendants, conditioned, in the form prescribed by the statute, for the defendant Pitts’s faithful administration, as executor of the last will of Samuel Pitts, deceased. The action was brought for the benefit of Mary Pitts, the testator’s widow, for the arrears of an annuity of 300 dollars, which she claims under her husband’s will.
    In a case stated by the parties for the opinion of the Court, it appeared that the testator bequeathed to his said wife the sum of 300 dollars' yearly during her widowhood, she relinquishing her right of dower and all other demands upon his estate. The testator, in case the interest of his personal estate should not amount to the sum so given, authorizes his executor to sell so much of his real estate as will amount to 5000 dollars, and to place the proceeds at interest, as a fund for the payment of the said annuity ; and on the death or marriage of his wife, orders the principal sum to be paid over to certain of his children, in equal shares. In an after clause of the will, taking into consideration the peculiar circumstances of the greater part of his real estate, and to provide against all the difficulties that might arise, he authorizes his executor to sell the whole of his real estate, to execute deeds of the same, and to appropriate the proceeds of such sales, as he shall from time to time make, to the payment of the testator’s debts, and of the said annuity.
    The testator’s wife executed a release of her right of dower, and of all demands, &c. She is still the widow of the testator, and has annually, since the death of her husband, received from the said executor the said yearly sum, until March, 1810, on which day in every year the same was payable; and he has not paid the same, or any part of it, since that day.
    The testator died seised of real estate more than adequate to the payment of his debts, and to the raising of the said sum of 5000 dollars ; the executor has neglected * to raise the said sum from the sale of the real estate, as a fund, &c., agreeably to the testator’s will, although the interest arising from the personal estate was insufficient to produce the said sum of 300 dollars a year.
    If, upon these facts, the Court should be of opinion that the said executor’s refusal to raise the said fund by the sale of the real estate of his testator, and to put it at interest in conformity to said will, was a breach of the condition of the said bond, the defendants agreed to confess the forfeiture, and that such judgment should be entered as the Court should direct. If the Court should be of opinion that the neglect of the executor to pay said annuity is a breach of the said condition, the forfeiture was alike to be confessed, and the said Mary Pitts, upon a hearing in equity, to have execution for the arrears of the annuity, with interest since it fell due, and costs. But if the Court should determine that the plaintiff was not entitled to maintain this action on the foregoing facts, he agreed to become nonsuit, and that judgment should be entered for the defendants for their costs.
    
      Aylwin for the plaintiff.
    
      Dana and Richardson for the defendants.
   The Court

expressing a strong opinion that the executor was bound to raise the fund for the payment of the annuity, and that his neglect so to do was an unfaithful administration within the condition of the bond, the defendants confessed the forfeiture of the bond; and, on a hearing in chancery, execution was, by agreement, ordered to issue in favor of the widow, for two years’ annuity, with interest and costs.  