We think it unnecessary to decide, whether the executors named in these reasons of appeal, are liable to render an account to the court of probate or not; for, if they are liable to do so, we see no reason why the court of probate, unless it chooses, should cite them to render an account at the instance of the appellants. The executors, if cited, might still neglect or refuse to render an account, and the only remedy, as given by the statute, in the case of such neglect or refusal, would be a suit upon their bond, on which the appellants are the sureties. Such a suit, under the statute, would have to be brought in the name of the court of probate, and at the instance of some party interested, which means, in our opinion, some party having an interest in the estate, and would not include the appellants. We cannot hold that the court of probate is required to issue the citation, on the application of persons who are not entitled *Page 191 to avail themselves of the statutory remedy, in case the citation is disregarded.
In this case, the bond goes beyond the requirement of the statute, and contains an express condition for an account. But we do not see that this gives the appellants any better claim; for even if the bond is, on this account, to be considered a common law bond, either in toto, or to the extent of that condition, the appellants, being no otherwise interested therein than as sureties on the same, would not, in our opinion, be entitled to maintain a suit upon it in the name of the court of probate.
For these reasons, therefore, and without meaning to be understood as expressing an opinion that the executors are not liable to render an account to the court of probate, or that the court of probate ought not to cite them to render an account at the instance of any person having an interest in the estate, we affirm the decree of the court below dismissing the application.
Application dismissed.