Colwell v. Alger , 71 Mass. 67 ( 1855 )

Shaw, C. J.

A residuary legatee and executor, who avails nimself of the privilege of giving bond conditioned to pay debts and legacies, and thereby exempts himself from the duty of returning an inventory, thereby conclusively admits assets; if he has the slightest doubt that there is sufficient property to pay all debts and legacies, he should give bond in common form.

The direction of the testatrix, in a distinct part of the will, that the heirs and legatees should bear a proportion of the expenses of her maintenance, we are inclined to think void for uncertainty. But whatever else it might have meant, it was not a condition. It was not a condition in terms. Besides, a will can have no operation during the life of the testator; on the contrary, it is supposed to remain unknown, even to the beneficiaries. It would be strange, if acts to be done in the life time of the testatrix should be made a condition on which a legacy is to have effect at her decease; when the legacy, and even the whole will, may itself be revoked at any time before her decease.

Nor can we perceive any difficulty in maintaining an action. The form of the action is, we suppose, regulated by the new nractice. A gift of one “ feather bed,” if more than one is left, may not be certain ; but it may be rendered certain, by the designation of the executor, or by his permitting the legatee to select and identify it. If the executor , refuses to do either, or, on such designation being made, refuses to deliver it on request, it is a breach of his duty, on which any suitable action will lie. The probate bond given to the judge is merely collateral, as a security for all persons interested, upon all defaults of the executor.

jExceptions overruled.