
    Samuel Quinby, Executor of Ephraim Quinby, Deceased, v. Robert H. Walker and William H. Prindle.
    Where a testator, at the time of his death, hold certain bonds, in personal trust, for the sole benefit of others, and was in no default as to the duties of his trust; and said bonds were afterward collected by his executor, with the knowledge and apparent acquiescence of the beneficiaries, and the proceeds-were not paid to the parties entitled thereto under the trust. Held: That the trust funds were not assets of the estate of the testator; and therefore, an action could not be maintained by one of the beneficiaries against the sureties in the executor’s bond, for a misappropriation of the trust funds so collected.
    Error to the district court of Trumbull county.
    Suit was brought in the court below, by the plaintiff in error, against the defendants, and one James Gr. Scott (who was not served with process), upon an administration bond, executed by the said J ames Gr. Scott and Matthew J. Scott, as principals, and by the defendants as sureties, for an alleged default of James Gr. Scott, as executor of the last will and testament of his father, Nehemiah Scott. The petition in the original action charges a breach of the bond, on the part of James Gr. Scott, by the misappropriation of certain trust funds, which came into his hands as executor of his testator, and which equitably belonged to the plaintiff’s testator. The petition further charges that the liability of the said James Gr. Scott had been previously ascertained and fixed by a decree in chancery, rendered upon a bill filed by the present plaintiff against him, charging him with an improper appropriation of the same funds.
    The defendants answered, and among numerous other defenses, denied that the supposed trust funds ever came into the possession of their principal as executor of the will of JSehemiah Scott, and denied that the same were any part of the assets or property belonging to the estate of the said Nehemiah, ■and therefore denied all liability on their part, as sureties in ■the bond sued upon, to account for any default of the said James Gr. Scott in relation thereto.
    The cause came into the district court by appeal from the judgment of the court of common pleas, and was there tried, on submission, by the court, without the intervention of a jury, and a judgment was rendered in favor of defendants, which the plaintiff now seeks to reverse.
    A bill of exceptions was taken upon the trial, from which it appears, that records and other evidence were submitted to the court, showing, among other things, the following state of facts:
    In July, 1845, Ephraim Quinby, the plaintiff’s testator, filed his bill in chancery, in Trumbull common pleas, against one John Moore, as administrator of William Moore, deceased, which was amended by bill filed September, 1847, making the said James Gr. Scott, surviving executor of Nehemiah Scott, also a party defendant. This bill was further amended in September, 1848; and to the bill thus amended the defendants .severally demurred. At April term, 1852, the demurrer of Moore was sustained, and the bill dismissed as to him, but the •demurrer of James Gr. Scott was overruled; and, after further amendment of the bill, leave was given Scott to answer.
    The bill, with its various amendments, charged in substance ■as follows:
    
      That, prior to April, 1813, one William Moore, of said county of Trumbull, had died, leaving a widow, Mary Moore, and nine children, who were his heirs at law, and' also leaving real and personal estate,' and that at the April term, 1813, of said court, Nehemiah Scott and the said John Moore were ■duly appointed and qualified as administrators of his estate. At the March term of said court, 1815, proceedings were instituted by the heirs of William Moore for the partition of the ■lands which they inherited from him, agreeably to the statute of 1810. Ephraim Quinby, having purchased the interest of one of the heirs, was a party to'these proceedings. It was in due form ascertained by the court, that the lands could not be .aparted without injury to their value, and thereupon at the June term, 1815, the administrators of the estate were ordered to sell the premises, subject to the widow’s dower therein; and at the March term, 1816, they reported sales made to sundry purchasers, subject to dower, and at prices stated in the bill. The court approved the report, and ordered deeds accordingly.
    Though these lands were reported as having been sold subject to dower, yet, in fact, by agreement of the widow, and the other parties in interest, they were sold free from dower, and the purchasers were allowed severally to retain in their hands one third of the purchase money, on which they were to pay interest annually, for the benefit of the widow, during her life, and in lieu of her dower, and at her death to pay the principal for the benefit of the heirs. Bonds to this effect, were executed by the several vendees of the lands, payable to Nehemiah Scott, as administrator of William Moore, deceased, he being the party through whom the arrangement was entered into with the purchasers. Neither of William Moore’s administrators ever claimed to hold the money so withheld, .except during the widow’s life, and for the purpose of paying her annual interest as aforesaid. The debts of the estate were fully paid, and the assets duly distributed before the ■death of Nehemiah Scott, except the portion of purchase money represented by these bonds; and John Moore, the co-administrator, had removed from the county, and had long ceased to take any active part in the business of tbe estate. Mary Moore, the widow, lived till tbe fall of 1834, when she and Nebemiab Scott died about tbe same time.
    By tbe last will of Nebemiab Scott be appointed bis sons, James Gr. Scott and Matthew J. Scott, bis executors, who were soon after bis decease duly qualified as sucb, and thereupon, in tbe year 1835, tbe bill charged, that tbe bonds representing tbe purchase money withheld as aforesaid, came into tbe hands of James Gr. Scott, as sucb executor, be well knowing their character' and for what they bad been given; and that be, partly in 1838, and partly still later, received tbe money due-thereon from tbe several makers. That be received said moneys as tbe executor of bis father’s will; and though be well knew tbe trust character of tbe funds, and to whom tbe samn belonged, yet be bad never paid any portion thereof to said Quinby, but refused so to do. Tbe bill thereupon prayed for a decree against tbe said James G-. Scott, for complainant’s share of said money, being one ninth part thereof.
    James Gr. Scott failed to answer, and at tbe term of October,, 1852, the court rendered a decree against him, pro confesso, finding that be received tbe moneys mentioned in complainant’s bills, as alleged in tbe amended bills of September, 1848, and of April, 1852, and that be ought to pay tbe same to complainant; and finding tbe amount of tbe same to be $154 iVo-
    Eor tbe payment of this sum, with costs of suit, within ten days, a decree was accordingly entered against him personally.
    It was further shown by tbe evidence, that Nebemiab Scott and John Moore filed a settlement account, as administrators of tbe estate of William Moore, in June, 1815, showing payments amounting to over $2000, and exhibiting a balance in their hands of $86; which was finally settled at ’ May term, 1830. ’
    It was also shown, that tbe will of Nebemiab Scott was proved and admitted to record, September 29,1834, and that Matthew J. Scott and James Gr. Scott were qualified as executors, and gave bond, as sucb, in the sum of $600, with tbe defendents Walker and Pringle as their sureties, which bond was duly executed, and is the one sued upon. Also, that the will of Nehemiah Scott, devised and bequeathed considerable property, real and personal, to his widow and children, including the executors, but contained no direction or disposition in regard to the bonds, held by him for the Mooro -heirs.
    It further appeared, that at the May term, 1838, James G. Scott, as surviving executor, filed his final settlement account ■of his father’s estate, to which no exception was taken, and the same was found to be correct, and ordered to be recorded. In this account the executors were charged with $428, as the ■amount due on one of the bonds held by their testator against a purchaser of the lands of William Moore’s heirs, and were credited with payment of costs of administration, debts and legacies to an amount exceeding the assets charged.
    On this state of facts the court found for the defendants, overruled the plaintiff’s motion for a new trial, dismissed his petition and rendered judgment against him for costs.
    The plaintiff in error claims that on the facts shown, judgment should have been rendered in his favor, and that the court erred in overruling his motion for a new trial.
    
      George M. TtMle, for plaintiff in error.
    
      B. B. Hoffman, for defendants in error.
   Scott, J.

The. action below was brought to recover of the ■defendants, as sureties in a bond executed by them and their principal, James G. Scott, to secure the faithful administration by the said James, of the estate of his father, Nehemiah 'Scott, of whose last will and testament he duly became executor.

The claim of the plaintiff was, that the condition of this bond had been broken by maladministration on the part of the ■executor, in failing to pay over to the plaintiff a share of certain ■trust funds, which equitably belonged to him, and which had come into the hands of the said James, as such executor, and with full knowledge of plaintiff’s ownership thereof.

The defendants being sureties, their liabilities can not be extended beyond the terms of the bond which evidences their contract. And this bond contains no allusion to property other than the goods, chattels and credits of Nehemiah Scott-For the administration according to. law and the will of Nehemiah Scott of such goods, chattels and credits only, as belonged to his estate, did these defendants become bound.

Did, then, the bonds which are claimed to have been collected by James Gr. Scott, as executor, belong, in any substantial sense, to his testator, at the time of his death? Were they goods, chattels, or credits of the testator, which it became the duty of his executor to administer ? We think they are shown not to have been assets of the e'state. The testator was, in respect to them, a mere trustee, who had faithfully fulfilled his trust up to the time of his death. The whole beneficial interest in them was in the heirs of William Moore, and their assignees; and neither creditors, heirs nor legatees of the testator could assert a claim to them or their proceeds.

If it be claimed that Nehemiah Scott received these bonds, as the administrator of William Moore’s estate, and that they were assets of that estate, then, clearly, the executor of Nehemiah could not, as such, succeed to and carry on the former administration. The duty of completing that administration, devolved upon the co-administrator, John Moore, who survived Nehemiah Scott.

But these bonds were not received by Nehemiah Scott in the discharge of his duties as administrator. They represented a part of the value of lands, which, upon the death of William Moore, descended to his heirs, subject to his widow’s right of dower. And they came into his hands not by virtue of any power conferred or duty imposed'upon him as administrator,, either by the provisions of the statute, or the order of the court, but by virtue of the consent and agreement of the widow and heirs on the one hand, and the purchasers on the other.. Nehemiah Scott thus became a trustee fpr the widow and heirs of' William Moore; constituted such by their own agreement;and Ms duty as such trustee was to collect and pay to the widow, annually, the interest stipulated to be paid, during her life; and upon her decease, to collect and pay over to the heirs or their representatives their respective shares of the principal.

In this arrangement his co-administrator seems to have had no agency; and as it did not fall within the scope of his duties as administrator, Ms demurrer to the bill, filed originally against him in 1845, was properly sustained by the court. Nehemiah Scott being, then, the sole trustee, and having been constituted such by the act of the parties in interest, grounded on their personal confidence in Mm, his death terminated the trust. And as no default is imputed to Mm in the discharge of the duties of his trust, no claim existed against his estate in favor of the beneficiaries at the time of his death. It does-not appear that he survived the widow of William Moore, or that the principal of the bonds became due in his lifetime. Upon his death it was entirely competent for the beneficiaries of the trust to have procured the appointment of another trustee, or if this were rendered unnecessary by the death of the widow Moore, and the consequent maturity of the bonds, then to have demanded the bonds of James Gr. Scott, into whose possession they came upon his father’s death, and to have collected the same by suit in chancery, if necessary, for their own use.

Instead of doing so, they appear to have acquiesced in the collection of the bonds by James Gr. Scott, and to have made no attempt to call him to account until many years after the final settlement of his accounts as executor. In collecting these funds with full knowledge of their trust character, and with the acquiescence of the beneficiaries, he must be regarded as acting in the character of their trustee, and not as the executor of his father’s will, which did not purport to make any disposition whatever of the bonds or their proceeds. Having collected the bonds, James Gr. Scott is, no doubt, liable to account to the plaintiff for his share of the proceeds; but we think it equally clear, that as the trust funds so collected were not assets of the estate of Ms testator, his default as trustee, is not chargable to his sureties in the administration bond.

Judgment of the district court affirmed.

Peck, C.J., and Brinkerhoee, Ranney and Wilder, JJ., concurred.  