If, after an executor of a will, to whom the entire property is devised, has filed a bond to pay the debts, the estate is decreed to be and is administered by him as insolvent, persons indebted to the estate cannot be charged in foreign attachment as his trustees.
SMITH, J.
The giving of a bond by an executor, who is residuary legatee, to pay debts and legacies (G. L., c. 195, s. 13, Pub. Stats., c. 188, s. 13), has been held to vest in the executor all the estate of the testator not specifically devised. Tarbell v. Whiting, 5 N.H. 63; Batchelder v. Russell, 10 N.H. 39; — and see Tappan v. Tappan, 30 N.H. 50, 68, and Mercer v. Pike, 58 N.H. 287, 288. But this holding was questioned in Heydock v. Duncan, 43 N.H. 95, 101, and Brown v. Brown, 55 N.H. 106, 109.
What the result in this suit would be had there been no insolvency decree, is a question not considered. It must be presumed that when the estate was decreed insolvent the executor gave a new bond, and that the original bond was adjudged insufficient, or was withdrawn be leave of court. The estate could not be administered as insolvent without the executor's giving a new bond.
No appeal has been taken from the decree of insolvency. The decree is conclusive as long as it stands. Simmons v. Goodell, 63 N.H. 458. Not having been reversed, the creditors are entitled to the property of the deceased.
Trustees discharged.
CHASE, J., did not sit: the others concurred.