The Providence news. (Providence [R.I.]) 1891-1906, 1899-04-21
HIS BONDSMEN
MUST SETTLE.
Appellate Court Decides Against
Bernard MCCuIIa.
EXECUTOR ON GALLIGAN ESTATE
Filed Account In 1897 Showing a Balance
Over All Charges Of $60466.
HEIRS SUED TO RECOVER THIS SUM.
FcCulla Claimed fs Had Paid Balance to Mother
Of Tho Heirs, WHO'S Dead ad-Cout Folds
There Was no Legal eaymsnt.

The bondsmen of Bernard McCulla
must account with the children of Ed
ward Galligan, of whose viii Mr.. Nc.
Gala was made executor about q years
ago. An opinion was handed down by
the appellate court today in the case
which was brought I'm the name OF the
Municipal court against Mr.. McCulla.
Justice Stiness wrote the opinion OF
the court and he says: The defendant
was appointed executor of the will OF
Edward Galligan October 2. 1877. The
will gave the sum of $500 to his widow
and two minor children TO be divided
equally between them, and the resi-
due OF his estate also TO them. then
heirs and assigns.
In April, 1897, the widow having
died, and inventory or account having
been filed by the executor on the peti-
tiCn OF the children, then or age, he
was cited and ordered TO account, which
he did on July, 1897, showing balance
over probate charges of SbO4.66. This
sum he claimed 10 have paid in full to
Ellen Galligan, the widow OF the testa-
ouired by law, and failure TO admins
this suit upon his bonu. alleging failure
TO file inventory and to account, as re-
quired b ylaw, and failure to admins
ter according to law and the provl-
sions of the law as breaches of tie
bond.
on waiver of jury trial the case was
heard by single justice, who decided
that there was no breach on the
ground of failure to file inventory ana
account within the time prescribed by
statute, because this had been done
under the authority and pursuant TO
the order Of the probate court after
citation also that the action could not
lie for non-payment of legacies, De-
cause of the provisions OF Gen. Laws
cap. 2IS. sec 10, 30. 81. Section 10 pro-
vides that a legatee may recover his
legacy in an action at common law,
but no action shall be brought until
the executor has accounted under sec
tions 80 and 81, or failed TO comply
with the terms thereof.
These last two sections provide that
within three years after the date OF the
first advertisement, or such further
period as the court may allow, the eX-
ecutor shall file in the probate court an
account setting out the legacies 10 W
paid and the property to be turned
over. If found correct, this account ls
to be certified TO the appellate DIVISION
of the Supreme Court, where nnal ana
conclusive decree is 10 be entered. The
statute uses the word account" but
what is set out is only statement OF
legacies and assets. Formerly an exc
cutor had 10 run the risk OF constituting
will and paying legacies, relying on
the allowance of his account by the
probate court But these provisions.
adopted after the decision in Williams
VS.. Herrick Is II. l. 120, affirming Ar
mold VS.. Smith. Ia r. |. 2l7. that probate
courts have no jurisdiction 10 allow tho
payment OF legacies, enable an execu-
tor to bring the matter of construction.
payment, abatement, etc, before the
Supreme Court for "a conclusive decree.
These sections are therefore largely, IA
not primary. for the protection of the
executor. i'm settling the rights of tho
partics AS these sections were not
added to the statutes until long after
the three years had expired IL may be
doubtful whether they. apply TO this
case, but, assuming them To be sim
ply a change i'm remedy, IL is clear that
their terms do not prevent this action.
Before these sections were adopted
Iegatee could sue for his legacy at law,
as a creditor could sue. A residuary
legatee. however, could not sue until
the residue had been ascertained. Mu-
nicipal Court VS.. Henry. IL X. l., 563.
But i'm any case, suit could not be
brought on the bond for neglect to file
inventory or 10 account until after
citation 10 the executor or admlnlStra-
tor. LIN this respect creditors and lega-
tee stood alike.
AS TO the objection raised under Gen.
Laws. cap. rs. sec. %. that an action
cannot be brought on the bond until
after 2 citation. i'm any case the court
holds that an account having been rem.
dered showing funds I'm hand there il
10 further provision for a citation.
Judge Stiness concludes: I'VE are
therefore. OF opinion that Gen. Laws
cap. 2lS. sections II. 30 and 81. were in
tended 20 be prospective in their opera,
ton and not 20 cut off the right of ac-
tion already accrued; that by It's terms
il did not cut of the right OF action in
this case; that the citation required by
law having been duly fled and allowed
in the probate court showing a balance
I'm the hands OF the executor. this &C
ton can be maintained. that. as tic
testimony shows no payment Of thc
legacies TO the legatees. for whose bene.
m this suit - brought. or 10 their guar.
dians. a breach of the bonds appears
Judgment viii. therefore. be entered
for thep la'ntim for the penal sum OF
the bond. which will stand for chanceri-