Estate of Chesney

HARRISON, P. J.

By the last will and testament of the above-named decedents she bequeathed to the respondent the

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sum of five hundred dollars. After the expiration of more than one year from the issuance of letters testamentary the respondent presented to the superior court her petition for a distribution to her of the said legacy. In her petition she alleged that the court had made a decree establishing due notice to the creditors of said estate, and that the time for the presentation of claims had expired, and that all claims that had been presented to and allowed by the executors had been fully paid; that a claim against the said estate for $915 had been presented by her and rejected by the executors, and that an action thereon was still pending and undetermined; that the estate was indebted to no one but herself, and to her only upon her said claim. She also alleged that it appeared from the inventory of the estate filed by the executors that its value exceeded fifteen thousand dollars, and that they had filed an account showing that after reserving a sum sufficient to pay her said claim, in case she should recover thereon, there would remain in their hands a balance of upwards of three thousand dollars for distribution to the persons entitled thereto, and that the legacy to her could be paid without any loss to the creditors of the estate. The .executors filed an answer to her petition; and upon the hearing thereon the court found that all of its allegations were true, and entered an order directing the executors to make the payment asked for by the respondent, and dispensed with the execution of any bond on her behalf. From this order the executors have appealed; and in support of their appeal contend that it sufficiently appeared at the hearing that they did not have in their hands sufficient money with which to pay to the respondent the amount of her legacy; and that the court erred in not requiring her to execute the bond named in section 1663 of the Code of Civil Procedure.

In their answer to the respondent’s petition the executors set forth as a defense thereto that the decedent had made other bequests of equal rank with that of the respondent, which, with the interest thereon, amounted to about two thousand dollars; that the estate in their hands was subject to a collateral inheritance tax upon the several bequests, amounting to $729.38; 'and that the testatrix had directed them to erect suitable tombstones over the graves of herself and her deceased husband, which they estimated would cost