The only question to be disposed of in this case is as to the amount for which execution ought to issue, upon the judgment which has been rendered in favor of the plaintiff. Tho suit is founded upon the executor’s bond, given for the payment of the debts and legacies of the testator, in pursuance of the Gen. Sts. c. 93, § 3 ; and the breach of the bond charged against the executor is his neglect or refusal to pay the legacy given by the will to the testator’s widow. The declaration alleges that she applied to the plaintiff for leave to bring this action in his name ; that such leave was granted; and that the action is accordingly brought to recover damages “for the aforesaid neglect and default ” of the executor. The defendants in their answer denied that there had been any breach of the condition of the bond *483and insisted that the executor had fully administered the estate. Upon the trial of this issue, judgment was rendered for the plaintiff, and the case was committed to an assessor, to determine the amount for which execution should issue. The question now to be disposed of is raised by his report.
A b this stage of the case, it is manifestly too late to call in question the right of the plaintiff to maintain this action. If under any circumstances an action upon the executor’s bond fpr the payment of debts and legacies can be maintained in the name of the judge of probate for the benefit of a single legatee, we must assume either that the needful circumstances existed in this case, or that the want or absence of any of them was waived by the defendants. It is well settled that the giving of such a bond is an admission of sufficient assets, and the failure to pay a legacy on demand, when it is due, is a breach of the condition. Jones v. Richardson, 5 Met. 247. There being a breach of the bond, a suit in the name of the judge of probate will lie; and when such action can be maintained for the benefit of a legatee, the execution should issue for the amount of the legacy and interest. Fay v. Taylor, 2 Gray, 154. The bond is taken expressly for the security of a legatee, and upon proper demand suit upon the bond may be brought for his benefit. Prescott v. Parker, 14 Mass. 428. In Paine v. Grill, 13 Mass. 365, it was settled that after the judge of probate has obtained judgment on the bond for a breach of the condition the court might award execution to any one who should satisfactorily prove that he was entitled to an inlemnity out of the condition of the bond. The statute provides that if the executor should commit a new breach of the condition of the bond, or if a creditor, next of kin, legatee or other person interested has a claim for further damages, on account.of any neglect or maladministration of the executor, a writ of scire facias may issue on the original judgment, and a new execution may be awarded in like manner as might have been done in the original suit. Gen. Sts. c. 101, § 30. In Fay v. Taylor it does not appear to have been considered a necessary preliminary to such an action, that judgment should have been rendered in favor of the legatee, against the executor, for the amount of the legacy. In that *484case the amount of the legacy was not a matter of controversy. Whether the executor in the present case could have successfully resisted the plaintiff’s claim, on the ground that the legacy is not for a definite and specific sum, and that it should first have been made the subject of a suit against the executor and reduced to a judgment against him in favor of the legatee herself, is a question which does not arise upon these pleadings. It is too late for him, in the present position of the case, to resort to any such defence. We cannot doubt therefore that the execution may properly issue for the amount due to the widow, in this case, upon her legacy. Richardson v. Oakman, 15 Gray, 57. The auditor’s construction of the bequest to her, and his award and rulings as to the actual damage which she has sustained from the non-fulfilment of his obligations by the executor, appear to us to be correct both in principle and detail. The bequest of a good and comfortable support and maintenance, as to food, clothing and nursing, in health and in sickness, at the testator’s house, to be furnished by the executor at his expense, plainly includes a proper supply of fuel, and the necessary expense of keeping the house in a tenant-able and comfortable condition. Upon his refusal to execute the trust imposed upon him by the terms of this bequest, he may rightfully be compelled to furnish her with the funds necessary,to enable her to obtain and enjoy the bounty intended by the testator, and to indemnify her for aE damages occasioned by such refusal.
The only serious doubt in the case arises from the provisions of the fourth clause of § 28, which seem to import that the execution to be issued under that section should be for the entire amount of aU the estate remaining in the executor’s hands. It appears to us, however, that these provisions do not apply to the present case, but are rather intended for the case of the removal of an unfaithful executor from his trust, and the substitution of another in his stead. Bennett v. Russell, 2 Allen, 537. The suit provided for in that clause is in the name of the judge of probate; but he is a formal and official party only. He can in no case receive the money, or the proceeds of the suit, himself, and has no authority to direct their appropriation or distribution. On the *485contrary, they are to be paid to a rightful administrator, and would be assets in his hands to be administered according to law. Newcomb v. Williams, 9 Met. 525. It is manifest that such a suit would not directly result in a decree in favor of a legatee or creditor whose rights had been disregarded, and would not furnish a convenient or appropriate remedy for a wrong of that kind.
Our conclusion therefore is, that execution should issue upon the judgment for the amount due upon the legacy as found by the assessor, namely, $993.41, with interest and costs.
Ordered accordingly.