
    Benjamin Barnes versus Robert Treat and James Allen, Esq., his Trustee.
    An executor cannot be charged as the trustee of one, to whom a pecuniary legacy is bequeathed by the will of the testator.
    The principal defendant in this case having been defaulted, the question brought before the Court was, whether Mr. Allen was holden as his trustee, upon the following facts appearing from his declaration on oath.
    
      Jeremiah Allen, Esq., late sheriff of this county, died on the twelfth day of February, 1809, leaving the supposed trustee sole executor of his last will, which was duly proved, and execution thereof committed to the trustee on the twentieth day of the same month, and which contained the following clause: — “ Fourthly, I give to Mr. James Eunson two thousand dollars, to be paid within one year after my decease, he having suffered as bondsman to my deputy Symmes; and I give to Major Treat,” (the defendant in this action,) 
      “ another of his bondsmen, one thousand dollars, to be paid at the same period.”
    
      Sullivan, for the plaintiff,
    contended that this legacy was a credit of the defendants’, liable to be attached by this process. And he cited Toiler’s law of executions, 24, to show that the title of the executor relates back to the death of the testator, and therefore it was not essential that in * this case the trustee [ * 272 j was summoned before probate of the will.
    For the principal point he relied on the case referred to by Sewall, J., in delivering his opinion in the case of Wentworth vs. Whittemore; 
      
       where “an executor, who was summoned as the trustee of a legatee, to whom a legacy was given, payable at the end of one year from the decease of the testator; although the executor, in his answer to the usual interrogatory, stated that he was not certain there would be any thing in his hands for the payment of legacies, after he should have paid the debts of the testator ; yet the action was sustained, and the executor adjudged to be a trustee within the statute.” This was a much stronger case than that at bar, for here there is no question as to assets.
    
      J. T. Austin, for the trustee,
    argued that an executor can in no case be held as the trustee of a legatee in virtue of a pecuniary legacy. Such a legacy is neither goods, effects, or credits belonging to the legatee. Nor can it be said of such a legacy that the legatee has intrusted or deposited the legacy with the executor.
    The eleventh section of the statute of 1794, c. 65, giving this process, provides that if the person summoned as trustee die pending the proceedings, his executor or administrator shall be liable, &c. But the executor or administrator of an executor is a stranger to the will of the first testator, and can never, as such, represent the first executor.
    The whole reason of the case of Wilder vs. Bailey 
       applies as well to the case of an executor, as of a sheriff summoned as trustee.
    Again; it depends on many contingencies, whether this legacy will ever be payable. At the time the process was commenced, it was uncertain whether Mr. Allen would accept the trust; or if he accepted, the judge of probate might not see fit to give him the execution of the will; or he might not offer sufficient sureties ; or the will might* not have been proved ; a posterior [ * 273 ] will might have been produced; or the testator might be proved incapable of making a testament; and if the will was proved, and the executor duly appointed, still the estate might not exceed the debts; or a posthumous child might be born. It has-been well settled, that a contingent demand cannot be the subject of this process.
    Further, executors are not compellable to pay legacies, without receiving a bond from the legatee to refund in certain cases; but if they may be held as trustees to the legatee, then they must pay the legacies without such security.
    The case cited from 1 Mass. Rep. was while contingent demands and moneys in the hands of sheriffs were held subject to this process, and it was also after probate of the will.
    
      Sullivan, in reply.
    The case of moneys in the hands of sheriffs, and other public officers, rests on a very different principle. The law places the money in their hands, and this process, if binding, would prevent the execution of their duty.
    It appears here, from the answer of the trustee, that he has assets, and that he holds himself bound to pay this legacy; so the demand cannot be considered as contingent.
    
      
       1 Mass. Rep. 472.
    
    
      
       3 Mass. Rep. 289
    
   The opinion of the Court (absente Parsons, C. J.) was delivered, as follows, by

Sedgwick, J.

The question in this case is, whether an executor, before probate of the will, can be summoned, and afterwards charged as the trustee of one to whom a pecuniary legacy is given by his testator, he having sufficient assets to pay all debts and legacies.

Formerly, executors, under the circumstances of Mr. Allen, as disclosed by his answers, were adjudged trustees; and so also were officers, who had in their hands money collected on executions. This, however, was done under the provincial statute on this subject ; between which and the act now in force there is considerable difference. By the statute now in force, “goods, effects, and credits, intrusted and deposited” in the hands of a stranger, are [ * 274 ] attachable. * Now, pecuniary legacies, in the hands of an executor, are not goods or effects; and it is equally clear that in no proper sense can they be denominated credits. Without the relation of a creditor and a debtor, there can be no such thing as a credit; but a legatee can in no proper sense be said to be the creditor of a testator; nor a testator, merely as such, the debtor of a legatee.

This question, in relation to an officer having money in his hands, collected on an execution, was fully considered in the case of Wilder vs. Bailey, mentioned at the bar; and the principles, which governed that case, apply with equal force to the case under consideration. In neither case is there a credit; nor was the subject, attempted to be attached, intrusted or deposited, in the sense of the act, in the hands of a person summoned as trustee. And it may he added, that the judgment provided in this process would be different from judgments in other cases against executors. In this case, to conform to the statute, it must be de bonis propriis, whereas in other cases it is de bonis testatoris.

The same principles, which were adopted in the case of Wildet vs. Bailey, have been again recognized this term in the case of Chealy vs. Brewer. On the whole, we are all of opinion that Mr. A lien must be discharged.

We have laid no stress on the circumstance in this case, that the service of the summons was before the probate of the will; because we are of opinion, that if the service had been after the probate, Mr. Allen could not have been adjudged a trustee.

Trustee discharged  