The executrix and residuary legatee, having given bond to pay debts and legacies, would doubtless be estopped to deny assets in any action to enforce the personal obligation thereby assumed by her; as, for instance, in an action upon a promissory note given by her for a debt of the testator, or an action to recover a legacy. Stebbins v. Smith, 4 Pick. 97. Jones v. Richardson, 5 Met. 247. Colwell v. Alger, 5 Gray, 67.
But the present action is not brought upon her bond, or in any form against her personally. It is an action upon a contract of the testator, and brought against her merely as his representative; the writ commands the officer to attach the goods and estate of the testator in her hands; and any judgment recovered against her would be de bonis testatoris, and not de bonis propriis. Hapgood v. Houghton, 10 Pick. 154.
The judge of probate, if satisfied that the bond given upon her appointment was insufficient security for those interested in the estate, might lawfully require her, as well as any other executor, to give a new bond in a larger sum; and, upon her refusal or neglect to do so, remove her from the office of executrix, and appoint an administrator de bonis non with the will annexed. Gen. Sts. c. 101, §§ 2, 15, 17.
Upon her removal from the office of executrix, her liability to, and right to defend against, this action ceased. It follows that no judgment therein can be rendered against her. Taylor v. Savage, 1 How. 282, and 2 How. 395.
The administrator de bonis non having accepted and qualified under his appointment, it was his duty to assume the defence of this action as the legal representative of the testator. Gen. Sts. c. 128, §§ 11, 12. Brown v. Rendergast, 7 Allen, 427.
No answer to the merits having been previously filed, and the administrator having obtained leave of the court to file such an answer, he might set up therein that the action was prematurely brought—that being a matter pleadable in bar of the action, and not in abatement only. Benthall v. Hildreth, 2 Gray, 288.
By the Gen. Sts. c. 97, § 16, “ no executor or administrator shall be held to answer to the suit of a creditor of the deceased, if commenced within one year after his giving bond for the discharge of his trust, unless it is for the recovery of a demand that would not be affected by the insolvency of the estate, or unless *439it is brought after the estate has been represented insolvent, for the purpose of ascertaining a contested claim.” The comprehensive words of this statute—“no executor or administrator” — include those who, being also residuary legatees, have given bond to pay debts and legacies, as well as those who have given bond in the ordinary form. Holden v. Fletcher, 6 Cush. 235. The whole section relates to suits against executors or administrators as such. The exception of “ a demand that would not be affected by the insolvency of the estate,” is clearly shown, by referring to the other statutes upon the subject, to apply to expenses of the last sickness and funeral of the deceased, and preferred debts to the government and for taxes ; although it is true, as suggested by the learned counsel for the plaintiff, that such debts might be entitled to a dividend only, if the estate should prove insufficient to pay them in full. Sts. 1784, c. 2; 1788, c. 66, § 2. Rev. Sts. c. 66, § 10; c. 68, §§ 1, 19, and commissioners’ note. Gen. Sts. c. 99, §§ 1, 20. Hapgood v. Houghton, 10 Pick. 154, 156. Wilson v. Shearer, 9 Met. 504, 507. This exception might also apply to claims against an executor or administrator for property in his hands, which the deceased held without right or upon a trust, and which were not assets for distribution among creditors. 2 Williams on Executors (5th Am. ed.) 1565. Johnson v. Ames, 11 Pick. 173, 181. Gen. Sts. c. 128, §§ 3, 4. But it does not include debts like that of the plaintiff, which, as against the estate of the deceased, would be affected by the insolvency thereof equally with the claims of his creditors generally. This action, having been brought before the estate was represented insolvent, is not within the other exception in the statute.
The objection that the action was prematurely brought is therefore a good defence, and, having been duly pleaded, the result is that, according to the terms of the report on which the case was reserved, there must be a Nonsuit.