few, if any, of the persons to whom the ten thousand copies of the libellous publication were transmitted had any interest in the character or pecuniary responsibility of the plaintiffs; and to those who had no such interest there was no just occasion or propriety in communicating the information. The defendants, in making the communication, assumed the legal responsibility which rests upon all who without cause publish defamatory matters of others; that is, of proving the truth of the publication, or responding in damages to the injured party. The communication of the libel to those not interested in the information was officious and unauthorized, and therefore not protected, although made in the belief of its truth, if it were in point of fact false. ** * In those cases in which the publication has been held privileged, the courts have held that there was a reasonable occasion or exigency which, for the common convenience and welfare of society, fairly warranted the communication as made. But neither the welfare nor convenience of society will be promoted by bringing a publication of matters, false in fact, injuriously affecting the credit and standing of merchants and traders, broadcast through the land, within the protection of privileged communications." The court held that information communicated, not merely to persons interested in it, but published to all persons who might be subscribers to the scheme of publication, was not privileged. The decisions in the Federal Circuit Courts are in coincidence with those of the courts of New York. Erber v. Dun, 12 Fed. Rep. 526; Trussell v. Scarlett, 18 id. 214; Locke v. Bradstreet Co., 22 id. 771. Against the authorities I find neither judicial decision nor dictum.

I concur in the result reached in Sunderlin v. Bradstreet, and in the reasoning upon which the judgment was founded. The defendants can claim no additional privilege in virtue of the business in which they are engaged. Their business is a lawful business; but as was said by the court in Sunderlin v. Bradstreet, "in its conduct and management it must be subjected to the ordinary rules of law, and its proprietors and managers held to the liability which the law attaches to like acts by others." The publication of defamatory matter affecting third persons, in a business prosecuted for personal gain, can be tolerated only on grounds of public convenience. The rights of individuals ought not to be made to yield to the exigencies of such a business more than public interests require. Public interests will be adequately conserved by extending the immunity of privileged communications only so far as to embrace communications to subscribers who have a special interest in the information. This restriction lays no unreasonable restraint upon the business of those agencies in collecting and communicating information in the interest of the public. Society is organized, and courts are established, for the protection of the rights of individuals. Unrestrained by those legal principles, which control the acts and conduct of other persons under like circumstances, these agencies, in the vastness of their operations, might become instruments of injustice and oppression so grievous that public policy would require their entire suppression.

Nor can the defendants acquire a larger measure of immunity by reason of their contracts with their customers to hold the information as confidential. The contract of the defendants with their subscribers is inter sese. In fact it affords no protection against injury by false reports. The manner in which these reports are disseminated renders protection to the public, under the terms of the subscriber's contracts, a delusion. Each of the subscribers has a printed copy to retain in his possession. Myers testified that although not one of the defendants' subscribers, he

nevertheless had seen their reports twice a week right aloug, sometimes only once a week, and sometimes twice a week; that during the last ten years he had seen their Notification Sheets thousands of times; and that any reputable merchant could get hold of their sheets, whether he is a subscriber or not. Others of the plaintiff's creditors, who were not defendants' subscribers, testified that they had frequently seen the defendants' Notification Sheets, and some that they had seen the sheet of November 5, 1884. The injury to the plaintiff from the false report resulted from the manner in which the defendants disseminated their publications.

It has been held that damage occasioned by the unauthorized repetition by a third person of defamatory words uttered orally is too remote to support an action against the original utterer of them, where the words are actionable only by reason of special damage. Ward v. Weeks, 7 Bing. 211. This case and the coguate case of Vicars v. Wilcocks, have been criticised. 2 Smith Lead. Cas. (8th ed.) 552. The principle held in that case, if sound, has never been applied to written or printed libels, nor is it applicable to defamatory matter published in that manner. The correct principle to apply to such publications is that the original publisher is answerable in law for all the consequences of his wrongful act which were reasonably to be foreseen, and which were the results, in the usual order of things, of such wrongful act. Hughes v. McDonough, 43 N. J. Law, 460; Pollock Torts, 463.

The rule adopted by the learned judge in defining the qualifications and limitations upon publications af. fecting credit and financial standing, which would make such publications privileged communications, was correct. His application of the rule to the facts of this case was as favorable to the defendants as they were entitled to have. His ruling with respect to the liability of the defendants for damage resulting from their wrongful acts was also correct.

The other exceptions have been examined. It is sufficient to say we find in them no error which would justify a reversal. The judgment should be affirmed. Runyon, Ch., and Knapp, Parker, Brown, Cole, McGregor, Paterson and Beasley, JJ., concurring.

VAN SYCKEL, J. (dissenting). The alleged libellous publication was a printed communication published by a commercial agency in the city of New York, of which the defendants below were members. The publication was contained in what is known as a “Notification Sheet," by which the agency communicated to its subscribers information affecting the financial standing of merchants and traders in various parts of the country. The plaintiffs below complained that in one of such Notification Sheets it was falsely stated that she had put a chattel mortgage on her stock of merchandise. The case shows that every subscriber to the commercial agency was required to enter into and did enter into a written agreement with the agency that all communications made by the agency, either verbally or through Notification Sheets, should be strictly confidential, and should be exclusively confined to the business of such subscriber's establishments. The information furnished is declared in this contract to be furnished to subscribers on request, for use in their business, as an aid to them in determining the propriety of giving credit. The trial court ruled that the agency had the protection of privilege in every case where the subscriber had a direct and personal interest in the person who is the subject-matter of inquiry, and that in all other cases they must stand, as others, on the truthfulness of their report, and their protection under the contracts with subscribers not to divulge the secrets of their business. Notice, express or implied, is absolutely essential to support an action for defamation. If a

infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence." Weatherston v. Hawkins, 1 T. R. 110, was an action by a discharged servant against his former master for words spoken by him to one Rogers, who applied for information about the servant's character. There was a count also for libellous words contained in a letter written by defendant to one Collier after Rogers had declined to employ plaintiff. This letter accused

Baron Parke, in Wright v. Woodgate, 2 Cromp. M. & R. 573, has clearly defined the term. He says: "The proper meaning of a privileged communication is only this: "That the occasion on which the communication was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact; that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made." This rule is founded in public policy, and has been liberally applied.

In Waller v. Lock, 45 L. T. Rep. (N. S.) 243, Jessel, M. R., says: "If an answer is given in the discharge of a social or moral duty, or if the person who gives it thinks it to be so, that is enough. It need not even be an answer to an inquiry, but the communication may be a voluntary one." He further observes in the same case: "It appears to me that if you ask a question of a person whom you believe to have the means of knowledge, about the character of another with whom you wish to have any dealings whatever, and he answers bona fide, this is a privileged communication."

In Toogood v. Spyring, 1 Cromp. M. & R. 184, Baron Parke says: * "If such publications * * be fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned, in such cases the occasion prevents the inference of malice which the law draws from unauthorized communications. * * If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within narrow limits.

*

To the like effect is the expression of Lord Ellenborough in Delaney v. Jones, 4 Esp. 193: "Though that which is spoken or written may be injurious to the character of the party, yet if done bona fide, as with a view of investigating a fact, in which the party making it is interested, it is not libellous."

In Laughton v. The Bishop, L. R., 4 P. C., 504, the House of Lords ruled that a communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has, or believes he has, a duty, is privileged, if made to a party having a corresponding interest or duty, although it contains criminatory matter, which without that privilege would be defamatory and actionable.

Mr. Justice Selden, in Lewis v. Chapman, supra, states the doctrine even more broadly: "Where the circumstances show that the defendant may reasonably be supposed to have had a just and worthy motive for making the charge then the law ceases to

ten in reply to a request by Collier for information, nor under an injunction of secrecy. Its sole purpose seems to have been to vindicate the defendant for uttering the previous defamatory words to Rogers, and thus to prevent a suit by plaintiff. Lord Mansfield, in deciding the case, said: "I have held more than once that an action will not lie by a servant against his former master for words spoken by him in giving the character of a servant. The general rules are laid down as Mr. Wood has stated, but to every libel there may be a necessary and implied justification from the occasion; so that what, taken abstractedly, would be a publication, may from the occasion prove to be none, as if it were read in a judicial proceeding. Words may also be justified on account of the subject-matter or other circumstances. In this case, instead of plaintiff's showing it to be false and malicious, it appears to be incidental to the application by Rogers to the master of the servant. And the letter was written to the brother-in-law of the plaintiff for the express purpose of preventing an action being brought."

Hewer v. Dawson, Bull. N. P. 8, was an action for saying of the plaintiff, who was a tradesman: "He cannot stand it long; he will be a bankrupt soon." Special damage was laid in the declaration that one Lane had resused to trust the plaintiff for a horse. Lane, the person named in the declaration, was the only witness called for the plaintiff. It appeared in his testimony that the words were not spoken maliciously, but in confidence and friendship to Lane, and by way of warning him, and that in consequence of that advice he did not trust the plaintiff with the horse. Chief Justice Pratt said that "though the words were otherwise actionable, yet if they should be of opinion that the words were not spoken in malice, but in the manner before mentioned, they ought to find the defendant not guilty." It did not appear that the defendant was applied to for the information, or that he had any interest in the transaction other than a friendly disposition to warn Lane of the risk.

McDougall v. Claridge, 1 Camp. 267, was for libel on the plaintiff in his profession as a solicitor. The libel was a letter written by defendants to bankers at Nottingham, charging the plaintiff with improper conduct in the management of their affairs. It appeared however that the letter was intended as a confidential communication, and that the defendant was himself interested in the affairs which he supposed had been misconducted. Lord Ellenborough held that the action would not lie; that it was impossible to say that the defendant had maliciously published a libel to aggrieve the plaintiff, if he was acting bona fide, with a view to the interests of himself and of the persons whom he addressed.

In the case of Toogood v. Spyring, supra, Baron Parke decided that if a former master, when applied to, gives the character of a discharged servant in the presence of a third person not interested, the communication, if made bona fide, is privileged.

In the subsequent case of Kine v. Sewell, Mees. & W. 302, he expressed his conviction that the law had been properly laid down.in the previous case.

Lawless v. Anglo-Egyptian Cotton Co., L. R., 4 Q. B. Div. 262, was an action against a joint-stock company,

the directors of which had published in the form of a printed circular, issued and sent to all the stockholders, the report of an auditing committee appointed to make an investigation into the finances of the company. The report contained defamatory statements concerning the plaintiff, who had been manager of the association. It was held that under these circumstances the presumption of malice did not arise, and the plaintiff was therefore nonsuited.

The following cases show that in the authorities heretofore cited the rule has been correctly enunciated: Bank v. Henty, 7 App. Cas. 741: Tompson v. Dashwood, L. R., 11 Q. B. Div. 43; Tuson v. Evans, 12 Adol. & E. 733; Philadelphia, W. & B. R. v. Quigley, 21 How. 202; Finden v. Westlake, Moody & M. 461; Hatch v. Lane, 105 Mass. 394; Brow v. Hathaway, 13 AHen, 239; Somerville v. Hawkins, 10 C. B. 580.

These cases show that all that is necessary to entitle such communications to the claim of privilege is that the relation of the parties should be such as to afford a reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of the appearance of an officious intermeddling with the affairs of others. Van Wyck v. Aspinwall, 17 N. Y. 190; Klinck v. Colby, 46 id. 427.

The cases heretofore cited have been considered without reference to mercantile agency cases.

cause it is not reasonable to suppose that it is pres

ent.

No case has been cited, and I think none exists, where the plaintiff has been permitted to make an issue of the fact whether the person applying to a former master in regard to the character of a servant had in truth any interest in knowing. It has been deemed sufficient to put the case within the rule of privilege that application was made and the answer given bona fide. Nor has any consideration been given to the magnitude of the interest which elicited the inquiry, or whether the interest was present or prospective. Nor in the case of master and servant has the master ever been held to any accountability for failing to use reasonable care to inform himself that the inquiry was made in good faith. Where inquiry is made of the master by one person at the solicitation of another, and where a tradesman inquires as to the responsibility of persons he may hope will some time offer to deal with him, although he has no direct present interest in them, communications in reply seem to be clearly within the principle of the protecting rule. It is now almost universally conceded that mercantile agencies are of great utility and advantage, if not absolutely essential, to those engaged in conducting the business and commerce of the country over the wide field where their enterprise leads them. The strict rule ap

press, will go far to destroy the purpose and utility of these institutions.

In Trussell v. Scarlatt, 18 Fed. Rep. 214, Judge Morris ruled that a notification sheet of R. C. Dun & Co., sent to a subscriber, containing a charge of bankruptcy against plaintiff, was a privileged communication. To this case Dr. Wharton has appended a note, maintaining the view that if the agency confines itself to the confidential communication of such information to its customers, then if it acts bona fide, and without malice or recklessness, these communications are privileged, and the defendant, if sued for libel, would be entitled to a verdict. The same opinion was entertained by Judge Nelson in Locke v. Bradstreet Co., 22 Fed. Rep. 771; by Judge Dewey in Billings v. Russell, 8 Am. Law Rep. 699, and by the Wisconsin court in State v. Lonsdale, 48 Wis. 348.

The underlying principle of the many cases cited, in my judgment, condemns Sunderlin v. Bradstreet and Erber v. Dun, and extends the rule of privilege to all communications spoken or written, bona fide, in the performance of what may reasonably be considered a duty to the public or to an individual, and also to communications required by a common interest, or by the relation in which the persons between whom the communication is made stand to each other. A false, defamatory publication must, when no othor adequate motive appears, be attributed to malice; but whenever the attending circumstances are such as to lead a reasonable and just mind to reject the presumption of actual malice, an essential requisite to the support of the action for libel disappears. It is this consideration of what justly may and what may reasonably be presumed to actuate the conduct of men that has led the judicial mind to introduce and apply the doctrine of privilege. The conceded instances in which this protection is accorded are not rare. Words spoken by a member in a legislative assembly; by one upon the subject-matter before a religious meeting; by counsel in the conduct of a cause; by one in response to inquiries by a friend concerning a physician, a lawyer or a tradesman; and by a former master to one who desires to know the character of a servant. Words thus spoken are not actionable per se; the presumption of malice is excluded, be

It may be said that in New York the rule in Sunderlin v. Bradstreet has been productive of no such result. But there the pledge of secrecy has hitherto saved the agencies from a disastrous flood of civil suits and criminal prosecutions which they could not have survived. Experience there furnishes proof, not of the wisdom of the rule, but that it is wise not to enforce it. There is no consideration or public policy which commends the application to them of an illiberal rule. If immunity is accorded to the master making statements concerning his servant, when in fact the inquiry is made by one who does not intend to employ the servant, and if malice is not presumed to exist where a merchant makes inquiry of his neighbor or friend concerning the pecuniary responsibility of those with whom he may in the future have transactions, how can the doctrine of privilege be restricted in this controversy to cases where the subscriber has a present, direct and personal interest in the person who is the subject of inquiry? Business interests are so ramified at this day that large enterprises cannot be successfully conducted without a comprehensive survey of the whole field of industry. The manufacturer must have some knowledge of the financial condition of those who are his rivals in business, as well as of those who may be induced to purchase his productions, in order that he may act judiciously in fixing his limit of production. The dealer in brewer's grains, in order to determine the extent of his purchases, must know something of the business of the consumers, their pecuniary ability to purchase. and the probable volume of business in the district of country over which his transactions extend. In fact every man who has merchandise to sell is, to some extent, interested in knowing how every man in the country stands in credit. Though one is not a customer to-day, he may be to-morrow. Orders are given by letter, by telegram, by telephone, or in person, requiring immediate response. It involves the use of the mercantile agency sheets, the loss of the customer, or the risk of selling blindly.

The subscribers to the commercial agency in effect say to it: "We have an interest in knowing the financial condition of all business men whose standing you report. We assure you of our good faith, by being

willing to pay you for that information, and we pledge ourselves to receive it as a confidential communication." These circumstances, repellant of the presumption of malice, constitute fhe substance and essence of privileged communicatiens. How under these conditions can the obligation be imposed upon the agency to make sure that the subscriber has a present interest in the person reported without narrowing the privilege which has operated as a shield in the many cases referred to? Business methods have changed; every department of human activity is marked by progress. There must be a correct apprehension of legal principles as they apply to a progressive state of society, if we would keep pace with the march of events, and render the common law as true and unerring a guide in jurisprudence to-day as it has been in the past. It is the pride of the common law that it is sufficiently broad and elastic to adapt itself to the exigencies of the times, and to adjust itself to the new and ever-varying conditions that may arise in the progress of the age.

The rule that a business man may inquire of his friend or his neighbor, as to the responsibility of one who has applied for credit, answered well enough fifty years ago, but it is altogether inadequate to the present requirements of trade and commerce. The law of Sunderlin v. Bradstreet would even suppress the prevalent practice in business circles of employing a credit clerk, to ascertain and report the standing of business men in the district which he canvasses. No man could safely answer his inquiries, and the clerk could not report to his employer without being liable to prosecution. The old adjudications, relied upon to support the more narrow rule, are the declarations of judges whose vision did not take in the widely different conditions which prevail in the affairs of men to-day. This doctrine utterly disables the agency to become capable of imparting even the information which it is conceded may lawfully be given. If the agency may furnish only to one having a direct interest, how would any one dare to give the information to the agency, for until some one having such interest has applied to the agency, the communication is within the prohibited class.

In my opinion, the defendants, in furnishing information to subscribers under the conditions imposed, are not subject to the presumption that they were moved by malice, and I therefore vote to reverse the judgment below.

Dixon, Magee, Clement and Whitaker, JJ., concur in the dissent.

STATUTE OF LIMITATIONS-AS BETWEEN EXECUTOR AND LEGATEE.

SUPREME COURT OF MISSOURI, APRIL TERM, 1887.

STATE, EX REL. FAGAN, V. GRIGSBY.

When the assets of a testator have been collected and reduced to money, and his debts have been either paid or barred by lapse of time, the time allowed by law for contesting the will has expired, all specific legacies have been paid, and all other trusts of the will have been discharged, so that the remaining assets are solely applicable to the payment of residuary legacies, then (if not earlier) a right of action accrues to the egatees against the executor on his official bond, and the statute of limitations begins to run in his favor: and this, notwithstanding the executor has never made final settlement of the estate and the Probate Court has made no order of distribution.

Cockrell & Suddath, for appellants.

Brinker & Jackson, for respondents.

BRACE, J. This action was commenced in the Circuit Court of Johnson county on the 11th day of January, 1884, by plaintiffs, who claim as legatees under the will of Bayless B. Grigsby, deceased. The petition states in substance that Bayless B. Grigsby died about October 1, 1856, in Johnson county, Missouri, leaving a will, which was duly probated October 31, 1856; that by said will defendant William F. B. Grigsby was appointed executor, and directed to sell all the property, real and personal, to pay himself $5,000, and distribute the remainder among the heirs of said decedent in accordance with the laws of descent and distribution in the State of Missouri; that in November, 1856, letters testamentary were duly issued to said defendant W. F. B. Grigsby, and thereupon the said W. F. B. Grigsby as principal, with John D. Smith, Wm. Calhoun and defendant Wm. H. Anderson, as sureties, executed their bond (a copy being filed) in the usual form, in the sum of $40,000, conditioned for the faithful execution of said will and paying over of money, etc., by said W. F. B. Grigsby; that said bond was duly approved, and that the surety, John D. Smith, is dead and his estate long since settled. Then follows a statement of the relationship of plaintiffs and certain of the defendants to the deceased, showing that they are the only parties entitled to distribution.

The petition then further alleges in substance that after the execution of the bond, W. F. B. Grigsby entered upon the execution of said last will and testament, and did collect and sell all the property, real and personal, of which said testator died seised.

Then follows an itemized statement of the property sold and the amounts realized therefrom, the total amounting to a little over $14,400, all received by the executor prior to the 30th day of January, 1861.

The petition then states "that in accordance with the directions of said will, said defendant W. F. B. Grigsby paid out and expended certain sums of money for which he is entitled to credit, and said sums so paid out are as follows:

For all debts of decedent and expenses of
administration, paid in 1859 and prior...
Special legacy to himself.......
Commission of 5 per cent..
Expenses of administration paid in 1866
and prior, but since 1859........

$1,394 64 5,000 00

729 97

176 80

That he has distributed to the parties thereto entitled a part of said estate in part payment of their shares as follows: January 23, 1860, to Sharp & Sawyer, $500; January 21, 1861, to the heirs of Charlotte Gordon the sum of $1,096.96, and on November 10, 1871, he paid to the heirs of Maria Jenkins, Susan Hieronymous and L. Kemp Grigsby, a large part of their distributive shares, leaving the amount due them as follows: Balance due Maria Jenkins, $535; balance due Susan Hieronymous, $545; balance due L. Kemp Grigsby, $750; that the last annual settlement made by said defendant William F. B. Grigsby was made in May, 1866; that said estate has never been finally settled, and as breaches of said bond, that said executor has not made a settlement of his accounts since 1866, and has not accounted for, paid or delivered in accordance with the provisions of said will, any of the sums of money so received by him except as herein above stated; that all the debts of said decedent have been paid, and that the sums remaining due to the distributees of said estate under the provisions of said will are as follows:" Then follows a statement of the particular amount due each one, with a prayer that an account be taken of the administration of the said W. F. B. Grigsby; the amount of assets in his hands belonging to said estate, and the share of each of the relators therein be ascertained, and for judgment therefor against said Grigsby and his sureties on his bond.

The defendants Zoll and Calhoun, executors of Wil

liam Calhoun, one of the sureties on the bond of said executor, demurred to the petition on the ground that plaintiffs' cause of action did not accrue within ten years next before the commencement of this action. Plaintiffs dismissed their action against the executor and the other defendants, and the demurrer of defendants Zoll and Calhoun having been sustained and judgment thereon entered in their favor against the plaintiffs, they appeal to this court. The legal issue to be determined is one solely between the plaintiffs as residuary legatees and the representatives of one of the sureties on the bond of the executor of the estate in which plaintiffs claim an interest as such legatees, in a statutory action commenced by the plaintiffs in the name of the State, under the provisions of section 290, Rev. Stat., 1879, in which damages are to be assessed for a breach of the condition of the executor's bond, the breaches assigned being that the executor has not made a settlement of his accounts since 1866, and has not accounted for or paid plaintiffs their legacies under the provisions of the will. There can be no doubt but that this action at law upon the bond for damages for both or either of the breaches assigned can be maintained, and in order thereto it is not necessary that the executor should have assented to the legacy, nor are the legatees restricted to an action in the Probate Court, or compelled to resort to a court of equity to charge such executor as trustee in order to recover their legacy if they choose to do so. They may proceed in the first instance as they have done in this case, by an action on the bond against the executor and his sureties, or either of them, for breach of its conditions, and in this way recover their legacy in the shape of damages for such breach.

Under the law at the time this estate was being administered legatees could not demand their legacies within one year after the grant of letters testamentary, nor could the executors be compelled to pay legacies within three years after grant of letters unless ordered by the Probate Court to do so, unless the legatees gave a refunding bond. Rev. Stat., 1855, §§ 1, 2, art. 4, chap. 2. "But if upon any settlement it appear there is sufficient money to satisfy all demands, the court shall order payment of legacies and distributive shares as in case of debts, except that specific legacies shali be first satisfied." Section 3, supra. This statute has remained unchanged since 1825, except that in 1865 the period of three years was changed to two years. It was held as early as 1836, in an action brought against the sureties on an administrator's bond, that the jurisdiction of the Probate Court to enforce distribution was not exclusive, but that the distributee had his right of action against the sureties on the bond of the administrator when all the debts were paid, demands barred, and the administrator had assets subject to distribution. State use of Ingram v. Rankin, 4 Mo. 426; and in a long line of decisions. Since it has been held that a distributee of an estate, after the debts were all paid, had his right of action on the statutory bond, whether final settlement by the representatives or order of distribution by the Probate Court had been made or not. State use of Adams v. Campbell, 10 Mo. 725; State use of Collins v. Stephenson, 12 id. 179; State use of Ingram v. Morton, 18 id. 53; State, ex rel. Midgett, v. Matson, 44 id. 305; State, ex rel. Kelly, v. Thornton, 56 id. 325; Morehouse v. Ware, 78 id. 100. Whilst there is not entire uniformity in the decisions as to the time when the distributee's right of action accrues, yet all the cases will be found within the limit of this rule. That when the assets of the estate in the hands of the representatives can be required for no other purpose than the discharge of the claims of the distributees or legatees, and their right to those assets has been fixed by law, a right of action accrues to such distributees or

legatees on the bond for the failure of the executor or administrator to account for and distribute those assets. In case of an executor having assets in his hands, when all the debts of the estate have been paid, when all demands against it are barred by the lapse of time, when the time allowed by law for contesting the will has expired, when specific legacies have been paid, when all other trusts of the will have been discharged, and those assets are solely applicable to the discharge of residuary legacies, the right of the residuary legatees to institute an action on the bond of the executor accrues for failure of such executor to discharge such legacies to the extent of the assets in his hands applicable thereto. In other words, when the sole duty of the executor is to pay over to the residuary legatees the assets in his hands, and he fails to do so, the trust under which he theretofore held the assets of the estate may be regarded as discontinued, his further holding being inconsistent with the rights of the beneficiaries of that trust, and their right of action at law upon the bond for his breach of duty is complete. This is a salutary principle tending alike to conserve the interests of the beneficiaries of an estate and to protect the sureties of an executor from risks not contemplated when they incurred their legal obligations. Each had a right to rely upon a prompt settlement of the estate in the Probate Court, and the rights of neither should be impaired nor their burdens increased by the failure on the part of such court to discharge its duty, or the possible inefficiency of the proceedings therein to secure those rights.

In this case it appears from the averments of the petition that the will of the testator was admitted to probate on the 31st of October, 1856. On the 1st day of November, 1861, five years thereafter, no person having appeared to contest the validity thereof, it became finally binding, and fixed the rights and interests of those claiming under it. At that date more than three years had elapsed since letters testamentary had been granted upon the estate, and all demands against it were barred. The executor had reduced all the property of the estate into money, and had paid all the debts of the testator, and the only specific legacy provided for by the will, as well as a large amount to the residuary legatees, and the residue in his hands was solely applicable to the discharge of the claims of such legatees.

At that date, if not earlier, the plaintiffs' right of action at law upon the bond of the executor against him and his sureties for his failure to account for aud pay whatever was due them on account of their legacies under the will of the testator was perfect and complete, and we find no error in the Circuit Court holding that this action, commenced more than twenty-seven years after grant of letters testamentary, twenty-four years after all the debts were paid and demands against the estate barred, eighteen years after the executor made his last settlement, and twenty-two years after their cause of action certainly accrued on the principle and under the authorities herein before quoted, was barred as against the sureties on the executor's bond. And its judgment is therefore affirmed. All concur.