The Pub. Sts. e. 166, § 10, provide that, in a proceeding like the present, “ if the defendant does not appear and show sufficient cause to the contrary, he shall be deemed guilty of waste, and shall be personally liable for the amount thereof, when it can be ascertained, otherwise for the amount due on the original judgment.” It is contended by the defendant, that the giving of the bond with condition to pay debts and legacies is not to be deemed a conclusive admission of sufficient assets, which imposes upon him a personal obligation to pay all debts and legacies, however large, from his own estate, after the assets of the testator’s estate have been exhausted, and after the penal sum of the bond has been paid in full. The plaintiff maintains the contrary, and insists that it is so established by the authorities.
We do not find it necessary to determine whether this is now an open question, and whether, under any circumstances, an executor who has given such a bond can escape from an ultimate personal responsibility for his testator’s debts. All that we need to consider is, whether he can maintain his defence against the claim of a creditor by showing that the assets in his hands were appropriated to discharge a just claim of his own against his testator. It appears, by the facts which the defendant offered to prove, that he had enough assets in his hands to satisfy the plaintiff’s claim, if his own claim was left unprovided for. The deficiency of assets, upon the defendant’s offer of proof, was not caused by any casualty, or accident, or loss by theft, fire, flood, earthquake, hostile invasion, or other act or circumstance beyond his control, and not to be guarded against or foreseen. He knew the amount of his own claim; he also had all the knowledge in respect to others which he cared to have. Nobody misled or deceived him. He was content to take his chance. By a solemn and formal act, by which the rights of others were affected, he gave the bond with condition to pay all the debts that might exist against the testator’s estate, and thereupon he took the whole estate into his own hands, *244returning no inventory thereof. This course of conduct assumes the sufficiency of the assets for the debts ; it was so understood by the court; and the defendant gained all the benefits which the statute allows in such cases. In point of fact, the assets were sufficient for the payment of all debts except his own. Under these circumstances, he cannot be allowed to set up his own claim to defeat the claims of others. He cannot be heard to aver or prove that the assets, though sufficient to pay all the other creditors in full, had been exhausted by reason of his having appropriated them to pay a claim of his own. He has undertaken to pay all the debts, be they more or less; and when this undertaking has been accepted and acted upon, he cannot escape merely by showing that he was not aware of the existence of a particular deb't, and that therefore it should go unpaid, while his own claim is paid in full.
On the agreed facts, the judgment should be for the'plain tiff, for the full amount of his debt and interest. See Jones v. Richardson, 5 Met. 247; Colwell v. Alger, 5 Gray, 67; Troy National Bank v. Stanton, 116 Mass. 435; Brooks v. Rice, 131 Mass. 408 ; Amherst College v. Smith, 134 Mass. 543 ; Jenkins v. Wood, 140 Mass. 66; Collins v. Collins, 140 Mass. 502.
Judgment for the plaintiff.