Moore

This is an action upon the bond of an executor for the faithful execution of his trust according to law. The plaintiff recovered judgment, and the defendant Earl, who is a surety on the bond, appeals from the judgment, and also from an-order denying his motion for a new trial.

The defendant Hathaway was appointed executor in May, 1868, and upon the execution of the bond in suit, letters testamentary were issued to him, upon which he indorsed his official oath as required by law, and thereupon took possession of the estate of the testator, of the value of $16,637, and returned and filed an inventory thereof on May 11, 1868. Upon a final settlement of his accounts, in September, 1889, the court found in his hands a balance of $12,577. This balance, by the decree of distribution, was given to the plaintiff, who brought this suit on the executor’s bond to recover the full penalty thereof, which is only six thousand dollars.

The only point made for the appellant is, that the probate court acquired no jurisdiction to probate the will or to issue letters testamentary, and therefore that, as to the surety, the executor’s bond is void.

The only alleged defect in the proceedings by…