Simeon Waters et al. Administrators, versus Abner Eddy.
Where a son made a bond to his father, reciting that the father had conveyed certain land to the son, and conditioned, among other tilings, to pay all the father’s debts existing at the time of making the bond, and on the decease of tile father his estate was declared, and eventually proved, to be insolvent ; and the holder of a note of tlie father, dated prior to tile bond, presented the same to the commissioners, by whom it was rejected as a debt which the son was bound to pay, and the holder of the note neglected to prosecute the same against the estate by a suit according to the provisions of the statute in such case ; it was keldy that the administrator might maintain a suit on the bond for the benefit of tlie holder of the note.
This was debt on a bond dated April 15, 1819, for 1500 dollars, by the defendant to his father, Abner Eddy, the intestate, on whose estate the plaintiffs were administrators. The condition was, among other things, that the bond should be void, provided the obligor should permit the obligee to take one half of the produce of a farm and occupy one half of a house, therein described, during his life, and “ cause to be paid all the debts which the said Abner Eddy now owes, and save harmless and indemnify the said Abner from all costs which may arise from such debts.” On the decease of Abner Eddy senior, his estate was represented insolvent, and proved in fact to be so. A note made by him during his lifetime, and dated January 1, 1818, for 19 dollars, payable to Nehemiah Hinds, and not paid during the intestate’s life, was presented before the commissioners of insolvency, who refused to allow it, on the ground of its being dated prior to the bond, and being accordingly one of the debts which the obligor was bound to *412pay. Hinds, the holder of the note did not prosecute ihi same at common law, pursuant to the statute of 1784, v. 2. Before the commencement of this suit, the plaintiffs presented the note and bond to the defendant and demanded payment of the note.
Sept. '2SM.
The case was submitted to the Court on an agreement that the plaintiffs should become nonsuit, or the defendant be defaulted, according to the opinion of the Court.
Dewey and Clark, for the defendant,
contended that there was no liability on the part of Eddy, the father, to pay the debt, for which the note to Hinds was given ; it had been discharged by operation of law and the proceedings which had been had. This note having been rejected by the commissioners on the intestate’s estate, and no action at law having been commenced on the same, it could no longer be enforced against the estate.
This bond is substantially one of indemnity, and accordingly the obligor is not bound by it to pay any debt of the intestate which could not be enforced against him or his estate. The obligee must be damnified before he can call on the son upon the bond, or his representatives.must first pay the debt. The bond was personal to Eddy the father, and not given for the benefit of his creditors. In case of his decease, Hinds’s remedy was by suit at law, first giving notice of twenty days. The creditor could not enforce this bond. The claim is also void from the loches of the holder of the note.
Dickinson and Marcy, for the plaintiffs,
said it was a condition of the bond that the defendant should pay the just debts of the intestate. He was bound to do this before any suit was commenced and within a reasonable time ; and having neglected to do so, he is liable to a suit on the bond. The circumstance of the note not being allowed by the commissioners, is no defence to the defendant. In Cooper v. Mowry, 16 Mass. R. 5, it was held that a sheriff to whom a bond of indemnity was given, was not bound to wait until he was sued, before he could commence a suit upon the bond. The intestate was damnified ; it was an injury to him to defraud his creditors, who became such previously to 1819, when he was solvent. The bond was intended for the benefit of the intestate’s creditors. Money paid by A for the benefit of B, may be sued for by B *413in his own name ; and so, when a contract is not under seal. Arnold v. Lyman, 17 Mass. R. 400; Watson v. Cambridge, 15 Mass. R. 286; Felton v. Dickinson, 10 Mass. R. 287. And when a contract under seal is made for the benefit of a third party, his interest will be protected After the decease of an assignor, the law allows his assignees to use the name of his executor. Dawes v. Boylston, 9 Mass. R. 337. This bond was for the benefit of Hinds, and he had his election to present his claim to the commissioners, or to resort to the bond.
Sept. 25th.
Parker C. J.
delivered the opinion of the Court. The condition of the bond is, that the obligor will pay all the debts which the obligee now owes. And this was an important part of the consideration for the conveyance of the estate to the son. The bond is payable to the obligee, his executors, &c.; which excludes the supposition suggested, that it was intended to be personal, so as not to be in force after his death. If the obligee had lived, he could have maintained an action on the bond for the non-payment of his debts, although he had not been called upon himself to pay them.
The presentation of the note to the commissioners by the holder and their rejection of the claim, and the omission to prosecute at law, form no defence. The obligation was direct, to pay the debts. It may be presumed to have been a principal object with the obligee, to have justice done to his creditors. It was for this purpose that he conveyed his estate to his son. Indeed, without this purpose, the conveyance would have b?en fraudulent. How came his estate to be insolvent? Because he conveyed it to his son, in trust for himself, and for the payment of his debts. It would be a fraud upon the parent by the son, after having obtained title to his estate on the condition of paying his debts, to refuse payment of them because he died insolvent. The administrators have a right to exact of him money under this bond, to enable them to discharge debts, the payment of which their intestate had honestly provided for. We think it very clear that judgment should be for the plaintiffs.