The present case falls within well settled principles, applicable to the trustee process, and requires no extension of them beyond former decisions of this court.
By the Rev. Sts. c. 109, § 62, “ any debt or legacy due from an executor or administrator, and any other goods, effects and credits, in the hands of an executor or administrator as such, may be attached in his hands by the process of foreign attachment.” It was originally objected that the right to a legacy was so far a contingent, debt that this process would not lie for a legacy in the hands of an executor, until after the settlement of the estate, and after it was ascertained that there would be sufficient assets to pay the same. This objection was early raised in the case of Holbrook v. Waters, 19 Pick. 354, and again in reference. to a distributive share of an heir at law, in the case of Wheeler v. Bowen, 20 Pick. 563, in both which cases it was held that, upon the legal appointment and qualification of an executor or administrator, the interest of a legatee or heir at law, in the estate which was to be administered, might be attached by the trustee process; and that such attachment being made, the court could, whenever it was necessary, continue the case until the estate was so far settled as to render it certain that the executor or administrator had assets to pay the same. More recently, in the case of Cady v. Comey, 10 Met. 459, the court have gone further, and held that, although there be no personal property to pay the legacy, yet the action may be sustained, and the case continued, or execution stayed, to give the executor an opportunity to obtain license to sell real estate to raise money to pay the legacy. In the same case it was also held that the plaintiff in such trastee process must, if required, give bond to the executor to refund, if the sum thus paid should afterwards be required to pay the debts of the testator. These cases answer by direct decisions most of the objections urged against maintaining the present action.
It was further urged that, as no action could, at the time of the service of this process, have been maintained by the legatee, *254no right existed in behalf of his creditor. But that doctrine is not applicable to cases like the present. If it were so, the process might always be defeated by the legatee’s omitting to make a demand on the executor for his legacy, or to give a bond under Rev. Sts. c. 66, § 15, and the creditor be thus deprived of the opportunity to secure his demand.
In the present case, the executor has, in disregard of the attachment of the legacy in his hands, paid the sum to the legatee, and thus virtually acknowledged that there were assets in his hands. The case is therefore a very clear one to charge the trustee, without any further continuance.
Trustee charged.