Thacher v. Dunham , 71 Mass. 26 ( 1855 )

Thomas, J.

The Rev. Sts. c. 67, § 11, provide that “ if judgment shall be recovered against an executor or administrator for costs, in any suit commenced or prosecuted by him in that capacity, the estate in his hands shall not be taken on the execution for such costs; but execution shall be awarded against him as for his own debt; and the amount paid by him thereupon shall be allowed in his administration account, unless it shall appear to the judge of probate that the suit was commenced or prosecuted unnecessarily or without any reasonable cause.”

No question was made as to the propriety of the defence made by the administrator; but the amounts claimed by him had not been paid. The payment is, by the terms of the statute, a condition precedent to their allowance.

Decree affirmed.