Elihu Stratton et al. versus Thomas Mason et al., 15 Pick. 508

Shaw C. J. delivered the opinion of the Court. This appears to us to be a plain case ; the only question is, whether the facts agreed show a breach of the condition of the bond The plaintiffs were interested as heirs, in an estate of which the defendants were administrators, and there being difficulties and controversies in regard to the final settlement of the administration account, the whole subject was submitted to an intelligent referee.

The form of the award was very properly stipulated to be, that of a final account to be presented by the defendants, as administrators, to the Probate Court, and the effect of the defendant’s obligation was, that they would present and abide by the account so stated. The subject matter of allowance to the administrators, was embraced in the submission, because it was a final account, and therefore must include every item of allowance and disallowance. The award was complete, as well in regard to what it rejected as to what it admitted.

Every claim for allowance not inserted in the credit side of the account, was disallowed, as effectually as if done in terms. It is not a satisfactory answer, that the charge of $50 was for services • done after the award, and which were prospective only when the award was made ; it must be for services, foreseen to be necessary, and done qua administrators, and must of course form an item in a final account. Nor is it a more satisfactory answer to say, that the plaintiffs should have appealed from the decree of the judge of probate.

Non constat that the decision of the judge of probate was not legal and correct in allowing the claim ; the gist of the plaintiff’s complaint is, that the administrators had stipulated that they would not make it. If previously to a trial at law or before referees, a party enters into bond not to make a specific claim, the making it is a breach, not answered but rather aggravated by the consideration that it was a valid demand, to which the obligees had no legal defence, before the tribunal to which it was preferred. And the Court are also of opinion, that the acceptance of the dividend was no waiver.

Even if the plaintiffs might have appealed from the decree of the judge of probate, and relied upon the award as a ground for the disallowance of the item, they were not obliged to do so. A bond conditioned not to commence a suit, may under certain circumstances be pleaded as a. release, and relied on as a defence to a suit brought in violation of it; but such suit is not the less a breach of the condition, upon which the obligee, if he choose, may have an action. The plaintiffs, in like manner, might submit to the decree, and rely upon the bond for redress.

The bond is adjudged forfeited, and a hearing in chancery allowed.