Frye v. Crockett

This is an action against one of the sureties upon an executor’s bond, the other surety being dead, and the action against the principal having been discontinued. One objection to the maintenance of the suit is that it is brought in the name of the wrong person ; and, upon examination,. we are satisfied that this objection must be sustained.

It is settled law that an action upon an executor’s bond, not conformable to statute, can be maintained only in the name of the judge to whom it was given. Such a bond, being good only at common law, can not be sued in the name of a successor. The bond in suit, in this case, is not conformable to statute. It contains omissions and additions. The principal in the bond was not an administrator, nor a residuary legatee. He rvas the executor named in the will, but no legacy rvas therein given to him, residuary or otherwise. The bond required of such an executor differs from that which is required of an executor who *160is a residuary legatee; and it differs from that which is required of an administrator. And the statute is precise with respect to the form of each of these three kinds of bonds. And yet the bond in this case does not'conform to either of them. It omits one important condition required of ordinary executors— namely, that which requires them to account upon oath within one year — and substitutes others which are applicable only to administrators and executors who are residuary legatees. This will appear upon inspection of the bond, and by comparing it with the requirements of the statute. How such a form for a bond came into existence, it is difficult to conceive. Very clearly, it is not a statute bond; and a suit upon it, if maintainable at all, can be maintained only in the name of the judge to whom it was given. This suit is not in the name of the judge to whom the bond was given. It is in the name of a successor. Such an action is not maintainable. Cleaves v. Dockray, 67 Maine, 118, and cases there cited.

Plaintiff nonsuit.