The bond which the petitioner prays to have given up and cancelled was given by him to the judge of probate, upon receiving letters testamentary as executor of the last will of Rachel Alger, which had been duly proved and allowed. As he was the residuary legatee named in the will, he had the privilege of determining whether he would give bond to make and return to the probate court within three months a true inventory of all the real and personal estate of the testator, or a bond to pay all the testator’s debts and legacies. Rev. Sts. 63, §§ 2, 3. He voluntarily chose the latter. That excused him from returning an inventory. Rev. Sts. c. 65, § 1. Availing himself of the benefit and indulgence conceded to an executor who is also a residuary legatee, he has thereby deprived the other legatees and creditors of the advantage they would otherwise have enjoyed of finding in the inventory returned into the probate office authentic and conclusive evidence of the existence of assets.
The objections to granting the prayer of the petitioner to cancel and surrender to him the bond thus given to the judge of probate are obvious and decisive. In the first place, while the statute expressly requires that every executor * shall give bond with surety or sureties in one of the two forms which it prescribes, as preliminary to his entering upon the execution of his trust, no authority is conferred, there or elsewhere, upon the judge of probate or upon this court, to cancel, abrogate or annul it. And even if such authority could be supposed to exist in this court, as an undefined part of its general power and jurisdiction, (which we by no means intend to intimate,) to be exercised upon fit occasions and under proper circumstances, the petitioner has presented no case which could justify its intervention. It cannot be pretended that he would have a right to administer the estate without giving any bond. By his delay of more than a year and a half from the time of the issuing of the letters testamentary before filing this petition, he has rendered it impossible *406that there should be a compliance with the positive requirements of law that an inventory should be returned into the probate office within three months from that date. And by this delay, under a bond given to pay all debts and legacies, he has prevented the activity and vigilance of all persons interested in the estate in seeking to discover assets, or what disposition may have been made of them, until it may. now be too late to exert it. For these reasons, we think that the decision of the judge of probate refusing to cancel the bond was correct. And as that stands as a security to creditors for the payment of their debts in full, there was no occasion to appoint commissioners to receive and examine their claims, and he was therefore correct also in refusing to appoint them. Decree affirmed