never paid the same to him while living, nor to the said plaintiff, administrator as aforesaid, since, though alike requested, but neglects it, to the damage &c. Essex, 1790, Titcomb v. Barnard. T. PARSONS.

NOTE. By the Rev. Stat. of Mass. every legatee may recover his legacy in an action at common law, &c. ch. 66, § 16.

Actions by legatees against an executor or administrator with the will annexed, may be brought in Debt or in Assumpsit. It seems in Massachusetts, if there are sufficient assets, a promise may be implied.

A legatee may also have a remedy against the executor or administrator, for not paying the legacy, by suit on the probate bond.

Such action may be brought after the expiration of one year from the time of the executor's giving his probate bond, if the estate is solvent.

But under section 15, of the same chapter of the Revised Statutes, if the executor is required to pay a legacy or distributive share within four years after giving bond, the Judge of Probate, if he sees fit, may require the legatee, &c. to give bond to refund, &c.

Baron and feme for a legacy bequeathed the wife before marriage, and charged on real estate v. Surviving devisees.

For that one A, father of the said M, at &c., on &c., being seized and possessed of large real and personal estate, made his last will and testament in due form of law, and therein bequeathed to the said M, then single and unmarried, the sum of &c., to be paid her on demand, after his decease, and after bequeathing some other legacies in his said will, the said A, the testator, devised all the rest and residue of his estate, real and personal, to his three sons, to wit, C, then living, but now deceased, and to the said D and E, and to their heirs, as tenants in common, they to pay all the debts, the said testator should owe at his decease, his funeral charges, and all the legacies bequeathed by him in his last will, the charges of all which should be borne equally between them. And the testator, afterwards, to wit, at &c., on &c., died siezed and possessed of a large estate, real and personal, more than sufficient to pay all his debts, funeral charges, and legacies aforesaid, and, afterwards, to wit, at &c., on &c., the said will was duly proved, approved, and allowed, an attested copy whereof is in court to be produced, and the said C, D, and E, then and there entered into and became seized and possessed of the estate so devised to them as aforesaid, upon the conditions and limitations aforesaid, which was more than sufficient to pay all the testator's debts, funeral charges, and legacies aforesaid, and thereby became liable in law to pay to the said M her legacy aforesaid, on demand; and in consideration thereof,

then and there promised the said M, to pay her the same on demand; yet though requested by the said M, to wit, at &c., on &c., the said C, D, and E, nor either of them, either in the lifetime of the said E, nor since his death, never paid the same to the said M while single, or to the plaintiffs since their intermarriage, and the said D and E still unjustly refuse so to do; to the damage &c. Essex, 1790, Montgomery v. Peabody, T. PARSONS.

Administrator of Legatee v. Devisee for a legacy charged on real and personal estate.

For that one A, at &c., on &c., was, among other estate, seized and possessed in fee simple, of &c. acres of land in &c., of about &c. acres of land in &c., and of certain other lands in W, N, and B, and being so seized and possessed, then and there made his last will and testament in writing duly executed, and therein and thereby devised all the lands aforesaid, excepting seven undivided eighth parts of said outlands, in W, N, and B, to the said D and his heirs, and all his, the said A's, physical books and medicines, he paying out, among other legacies, the sum of &c., to said M, then living, to be paid in one year after his, the said A's, decease, which is now past, and afterwards, to wit, at &c. on the same day the said A died, seized and possessed as aforesaid, and afterwards, to wit, on &c. said last will and testament was duly proved, approved, and allowed, and said D afterwards, to wit, at &c., on &c., accepted of said devise, and then and there entered into possession of the same, subject to the payment of said legacy, of &c. to said M, as aforesaid, and thereby became liable, and in consideration thereof then and there promised the said M, to pay her that sum in one week after the decease of the said A, which is now past, yet the said D, though often requested, has never paid the said sum to said M in her lifetime, nor to the said plaintiff since her decease, which is to the damage of the said plaintiff, in his said capacity, &c. Sawyer v. Ordway. T. PARSONS.

Legatee v. Devisees, who were also executors, for a legacy charged on real and personal estate.

For that whereas the said A [testator] on &c., at &c., being then seized and possessed of a large real and personal estate, made his last will and testament, in writing, under his hand and seal, and thereby devised to his two sons, the said D and E, and their heirs, all his estate, both real and

personal, in certain proportions, between them to be divided; they, among other things, paying to the said C &c. dollars, within four years after his death. And the said A therein appointed the said D and E executors of his last will and testament; and afterwards, viz. on &c. at &c. died so seized and possessed thereof; and the said D and E afterwards, viz. on &c., accepted of the said trust of executors, and caused the said last will and testament to be duly proved and approved, and allowed, and agreed to the devise aforesaid, and entered into and possessed themselves of all and singular the said A's estate, both real and personal, being of a greater value than his debts and the legacies bequeathed by him in his said last will and testament; and thereby they became liable, and then and there promised to pay the said C the said &c. dollars, within four years after the said testator's death; yet though that time is elapsed, the said D and E, or either of them, hath not, nor have ever paid said sum, or any part thereof, though requested, but unjustly neglects so to do. F. DANA.

4. On Awards.

For not paying money on an award.

For that on &c. there were divers controversies between the said D and B, concerning their mutual accounts and debts, and then at &c., they appointed one A to hear and determine for them all said controversies, and mutually promised each other, to stand to and abide by the award of the said A thereupon; and the said A afterwards, on &c., at &c., there heard the said D and B, and adjudged upon the premises, and awarded that the said D should pay to the said B a balance of &c. dollars, on demand, and notified the said D and B thereof; yet the said D, though requested, hath not paid the said sum, but unjustly neglects so to do.

NOTE. If a matter in dispute is submitted by parol to arbitration, and the arbitrators award merely that a sum of money is due from one party to the other, it is not necessary to declare specially on the award; the sum awarded may be recovered under a count in Indebitatus Assumpsit, or a count on an insimul computassent. Bates v. Curtis, 21 Pick. 247. But where the award is for the performance of some collateral act, it must be declared on specially. Ibid.

For not paying money, according to an award by parol submission. For that whereas sundry disputes, discords, quarrels, and accounts, had arisen and were depending between the said

D and the plaintiff, concerning work done and materials found by the plaintiff for the said D, and other work, procured to be done for the said D by the plaintiff, and also &c. [stating the demands]; and, in order to make an end and final determination thereof, as well the said D as the plaintiff, on &c., at &c., submitted to stand to the arbitration and award of A, of &c., and B of &c., arbitrators indifferently chosen between the said D and the plaintiff to arbitrate, order, and finally award of, upon, and concerning the premises. And the said D afterwards, viz. on &c., at &c., in consideration of the said submission, and in consideration that the plaintiff did then and there promise the said D, that he, the plaintiff, would faithfully abide by and fulfil, whatever the said arbitrators should award and finally determine concerning the premises, on his part to be fulfilled, then and there promised the plaintiff that he, the said D, would well and truly perform and fulfil, all and singular those things, which the said arbitrators should finally arbitrate, award, and determine on his part to be performed and fulfilled concerning the premises. And the plaintiff, in fact saith, that the said arbitrators did undertake the business of arbitrating, ordering, and awarding between the said D and the plaintiff, of and concerning the premises, and did, by their award made afterwards thereon, viz. on &c., at &c., arbitrate, order, and award, between the said D and the plaintiff, in manner following, viz. that he, the said D, should pay to the plaintiff the sum of &c. dollars, in full of all demands that the plaintiff had on the said D for the work done, or procured to be done, &c. by the plaintiff as aforesaid. And the plaintiff further saith, that the said D hath not paid the said sum of &c. dollars to the plaintiff, according to the form and effect of said award, although the said D, on &c., at &c., had notice of such award, and was then and there requested by the plaintiff thereto; but the said D, not regarding his promise made as aforesaid, but contriving to defraud the plaintiff, still wholly neglects and unjustly refuses so to do. J. QUINCY, Jr.

For not performing an award in writing.

For that on &c., at &c., there had been sundry accounts, trade and dealings between the said D and the plaintiff, that then remained unsettled; and sundry mutual demands were subsisting between the said D and the plaintiff; and, for an amicable settlement and final determination of the

matters aforesaid, and of the mutual demands aforesaid, the said D and the plaintiff, on &c., at &c., aforesaid, submitted all the demands and matters aforesaid, to the arbitrament and final determination of A and B, and chose them arbitrators to make their final award upon the premises, and mutually promised each other to abide by and perform such award, or else to pay the sum of $20 to the other. And, at the request of the said D and the plaintiff, the said arbitrators undertook the trust aforesaid and heard the parties aforesaid upon all the matters aforesaid; and thereupon, afterwards, viz. on &c. at &c., aforesaid, made and delivered to the said parties, in writing, their final award upon the premises, submitted pursuant to said submission and agreement, wherein and whereby the said arbitrators ordered and awarded the said D, to pay the plaintiff or his order, the sum of &c. dollars, and ordered and awarded that the said. D and the plaintiff should execute to each other a full discharge of all the demands aforesaid; and thereupon, and by means thereof, the said D became obliged either to pay to the plaintiff the same sum on demand, and to execute the discharge on his part, or else, on demand, to pay the plaintiff the said sum of &c. dollars. And the plaintiff avers that he was then and there ready to execute the discharge, by him to be executed as aforesaid, and on his part to perform the award aforesaid, and ever since has been ready so to do; yet the said D, though then and there, and at sundry times since, thereto requested, hath refused and still doth refuse to abide by and perform on his part the award aforesaid, and also to pay said sum of &c. dollars, and still doth neglect to pay either of said sums; whereby an action hath accrued to the plaintiff to sue for the same; all which is to the damage, &c. Butler v. Noyes.

For not performing an award in writing.

And for that whereas, before the &c. day of &c., some disputes had arisen and were depending between the said plaintiff and the said E, respecting some flour (being other but similar to that described in the account annexed) which the plaintiff agreed to sell said E, at thirty cents per barrel, advance, and in addition to the costs and charges thereof, and the plaintiff had charged the same at the price mentioned in the said account annexed, and disputes had arisen between the plaintiff and the said E, respecting the costs. and charges of said flour, and whether the said E should be