
    Peter Gandolfo et al. v. James Walker et al.
    Testator directed in his will, that the executors should carry on his brewery business for seven years, “ for the benefit of the estate,” and at the end of that time should deliver, the brewery and its “proceeds” to residuary legatees named in the will. The executors carried on the business accordingly, using and employing the funds of the estate for that purpose. Held: That the moneys and profits arising from the business, were assets in the hands of the executors, for the administration of which their sureties are liable.
    The bond of the sureties in such case is not invalidated by the fact, that it contains, in addition to the statutory form, a condition that the executors shall pay the debts and legacies of the estate.
    Where a decree of the proper court has been rendered, directing the executors to pay to the residuary legatees the balance found by the court to be due, upon a petition filed by the executors against the legatees, and the probate court has ordered the amount of the decree to be paid, no farther or other finding of the probate court is necessary to enable the legatees to bring suit upon the bond.
    Error to the court of common pleas of Hamilton county. Reserved in the district court.
    The defendants in error are residuary legatees under the will of John Walker, deceased, described in the will as the children of his brothers William and James and his sister Ann. They brought an action in the common pleas against the plaintiffs in error, who were’ the sureties of Thomas Webb, one of the executors of the will, upon the official bond. The bond was in the penal sum of two hundred thousand dollars, dated June 28, 1853, and its condition was as follows :
    “ Whereas, John Walker, late of said county of Hamilton, deceased, made his last will and testament which has been duly proven and admitted to record by the probate court, in and for the said county, on the 25th day of June, a. d. 1853; and, whereas the said Thomas Webb is appointed one of the executors and is in said will named: Now the condition of this obligation is such that if the said Thomas Webb shall pay all the debts and legacies of the said John Walker, testator, according to law and the will of said deceased, and shall administer according to law and to the will of the testator, all his goods, chattels, rights and credits, and proceeds of all his real estate, that may be sold for the payment of his debts or legacies which shall at any time come to the possession of the executor or to the possession of any other person for him, and shall render upon oath, a just and true account of his administration within eighteen months and at any other times, when required by the court or the law, then this obligation to be void; otherwise to remain in full force and virtue.”
    The testator died in , 1853. Ey his will he gave his widow one third of his real estate during her life, and gave to her and to two other persons named, specific pecuniary legacies, which he directed his executors to pay “ as soon as convenient after his decease.” He also gave the use of a house for seven years to another party, and directed that twelve dollars per month should be paid to her during said seven years. The remaining provisions of the will, and the only parts of it which need be fully set out here, are . as follows:
    “ fourth. I direct that my brewery be carried on under the direction and superintendence of my executors, for the benefit of my estate, for the term of seven years after the date of my decease; and for this purpose I authorize my executors to employ competent persons, at proper salaries, to carry on the same, and at the expiration of said seven years, I give and devise my said brewery property and the- proceeds thereof, together with the machinery and fixtures, and stock at that, time on hand, to the children of my brother William Walker, my brother James Walker, and my sister Ann, share and share alike; and in case of the death of any of my said brothers’ or sister’s children leaving children, the children of such deceased child to have the share of the parent. The children of Dan Walker, deceased, son of my brother William Walker, to have one share or the share said Dan would have if living. To have and to hold the said property to said children their heirs and assigns forever.
    “ Sixth. All the rest and residue of my estate I give, devise, and bequeath to the said children of my said brother William Walker, and my brother James Walker, and my sister Ann, to them their heirs and assigns forever, and the children of the said Dan Walker, deceased, son of my said brother, to have the share said Dan would, if living, take; and in case of the death of any of such children leaving children, the children of such deceased to take the share the parent would have taken; to have and to hold the same to the said children their heirs and assigns forever.
    “ Seventh. I hereby authorize my executors to carry out and confirm any arrangement, and contracts made by me in the manner I could do if acting myself, and to collect and continue loans as may be convenient (but not to make new loans) of money already loaned on mortgage, provided the same shall all be collected and settled within the period of seven years after my decease.
    
      “Mghth. Sums of money received by my executors from my estate which will be for distribution to the children of my brothers and sister as above provided, to be divided and distributed when in sufficient sums for distribution and division.”
    The petition of the defendants in error, after setting out the bond, and the fact that they are the residuary legatees and beneficiaries, named and provided for in the fourth, sixth, and eighth items of the will, charges: That Webb, and his co-executor, Charles Stewart, carried on the brewery for the term of seven years, agreeably to the provisions of the will, and that they received large sums of money, as profits therefrom, to be administered upon agreeably to the will, as assets of the estate; that on the 20th June, 1860, the said term expired, and the plaintiffs" became entitled to said property, funds and business; and thereupon said executors commenced an action in the superior court of Cincinnati against these plaintiffs, for the settlement of said trust and of such part of the assets of said estate as were embraced in and by said brewery property, and the machinery, fixtures, stock, moneys and other rights and claims appertaining to the same and the business thereof, so conducted and carried on by said executors; and such proceedings were therein had, that upon a full and final settlement of the account of Thomas Webb, as one of said executors for and in respect of said assets, there was found to be in his hands separately, on June 20, 1860, by the consideration of said court, the sum of $9576.32 of the moneys, assets of said brewery and estate, which he was adjudged to pay to these plaintiffs, with interest from June 20, 1860, on which execution against said Webb was issued and returned no goods or lands whereon to levy. That afterward, on September 25, 1861, said Webb not having paid the same, it was ordered by the probate court, upon due notice, that said Webb, as executor aforesaid, should, on demand, settle and pay over to the plaintiffs the said sum with interest; or in default thereof, the plaintiffs were authorized to put said bond in suit; and that said Webb, having been since requested, has refused to pay said sum, for which judgment is demanded.
    A demurrer was filed to this pétition, and was overruled by the court.
    The plaintiffs in error then answered:
    1st. That they had no notice of the alleged proceedings in the superior court, or of the alleged order of the probata court.
    
      2d. That said Thomas Webb had fully complied with the condition of his bond, by fully administering the assets of the estate; alleging that the money due from Webb to the defendants in error, and for which they recovered the judgment in the superior court, was not assets of the estate, but was the profits and proceeds of said brewery concern, received by said Webb as trustee for defendants in error, and not as executor, and that they are not liable therefor upon their said bond as his sureties.
    To so much of this answer as denies notice of said proceedings and order, a demurrer was filed, and was sustained by the court, and exception taken. The other allegations of the answer were denied by a reply.
    On the trial, it was shown and admitted, that the executors had fully administered all the assets of the estate, except the amount for which the judgment aforesaid was recovered in the superior court. That soon after the death of the testator, the executors took possession of the brewery, and that they carried it on for the said term of seven years, at the end of that time delivering it, with its appurtenances and materials then on hand, to the defendants in error. That at the commencement of its operation, they set apart $41,000 of the moneys of the estate, as a capital with which to operate the brewery, leaving ample assets in money with which to pay the specific pecuniary legacies, which were all paid shortly after the testator’s decease. That the estate was credited with this $41,000, and afterward charged with the moneys realized from the brewery, as they came to hand. Eor the first eight months the accounts of the estate, and of the brewery, were kept together ; but after that time, the accounts of the brewery were kept in a separate book. The $41,000 was all repaid to the estate, and from $50,000 to $75,000 clear profits in addition. These profits were paid over as they accrued, with the residue of the other assets, to the defendants in error. The sum of $9576.82, recovered against Webb in the superior court, and for which this action was brought, was for overcharges made by him, for his salary and services in conducting the brewery business, and retained in his hands at the several times of making dividends and distribution. The executors have fully paid over to the defendants in error all that is due to them as residuary legatees, except this sum of $9576.32 in the hands of Webb, which never was, in fact, credited to the estate on the books, but was put down as part of the current expenses of carrying on the business of the brewery. The money of the estate, and that arising from the brewery, were kept in the same bank, and an account of it kept in the same bank-book, in the name of the executors; and in rendering their account to the probate court, they charged themselves with the profits of the brewery, as part of the assets of the estate.
    The common pleas, on submission, found for the plaintiffs below, and, after overruling a motion of the defendants below for a new trial on the ground that the finding was against the evidence and the law, entered judgment thereon. To all which the defendants below excepted, and to reverse the judgment, filed their petition in error in the district court, alleging that the common pleas erred:
    1. In sustaining the demurrer to the answer.
    2. In finding for the plaintiffs below.
    3. In overruling the motion for a new trial.
    The case was reserved in the district court to this court for decision.
    
      Stallo $ Kittredge, for plaintiffs in error:
    The bond, upon which suit is brought, is the ordinary executor’s bond, prescribed by statute.
    Now, in as much as bonds create liabilities strictissimi juris (State v. Medary, 17 Ohio Rep. 565), we claim, that this bond does not make the sureties liable for moneys due from Thomas Webb, as manager of the brewery. Eor:
    I. The fourth -section of the will creates a separate trust, distinct from the general trust devolving upon the executors, qua executors. We, of course, admit, that in one sens-e, all executors and administrators are trustees. They take the assets of the decedent in trust for his creditors, his widow and his legatees. But this general trust is different from the trust created by John Walker’s will in every particular — in its subject, its object, and. its beneficiaries.
    
    The subject of the executor’s trust, qua executors, is all the assets of the decedent. The subject of the trust created by the fourth section of John Walker’s will, on the contrary, is the brewery property alone, or at most, what remains after the debts have been paid, and the widow has been provided for.
    The object of the executor’s trust is to administer, according to law and the provisions of the will, the testator’s property, his assets. The object of the special trust created by the will, is to manage the brewery property to the increase or diminution of the original fund during a period far beyond the statutory time for the settlement of estates, for certain legatees.
    
    
      . The beneficiaries of the executors’ trust were the creditors, the widow and the legatees; the “cestuis que trust” of the trust established by the fourth clause of the will, were the legatees alone.
    Now, the language of the bond covers only the performance of the general executors’ trust. In the bond, which is the ordinary administration bond required by statute, there is no condition, that the executors shall faithfully perform all the trusts lodged in them by the will, or do all the acts required of them by the will. It simply guarantees that the executors shall “ administer according to law and the will of the testator, all his (the testator’s) goods, chattels, rights, credits, and proceeds of real estate, that may be sold for the payment of debts or legacies.”
    The law recognizes the creation, by testamentary disposition, of special trusts in executors, whether they be expressly named as trustees, or whether the property, which is the subject of the trust, be given them as executors, eo nomine. Hill on Trustees, 336, 514; Byrchall v. Bradford, 6 Maddock, 151; Ex parte Chadwin, 3 Swanston, 380; Phillips v. Mannings, 2 Milne & Craig, 309, 315; Aston’s Estate, 5 Wharton, 241; Trustees of Jacob v. Bull, 1 Watts, 370; Grignion v. Grignion, 
      1 Hagg. 535; Groton v. Ruggles, 17 Maine, 137; Knight v. Loomis, 30 Id. 204; Williams v. Cushing, 34 Id. 137; Deering v. Adams, 37 Id. 264; Clay v. Hart, 7 Dana, 1; Waldsmith v. Waldsmith, 2 Ohio Rep. 161.
    Moreover, the statutory law of Ohio recognizes testamentary trustees. S. & C.’s Stat. p. 568, sec. 6; p. 1630, secs. 66, 67.
    . II. The fourth clause of John Walker’s will gave the executors control, for seven years, of certain real estate (the brewery buildings and grounds), and the beneficial use, and thus the income thereof; and the amount now sued for is, wholly or in part, the fruit of this control. Now, rents and profits accruing after the death of the testator are not assets belonging to the executors qua executors. . Gibson v. Farley, 16 Mass. 280; 9 Met. 544.
    The bond in this case limits the liability of the sureties to the proceeds of the real estate sold for the payment of debts- or legacies. And it is well settled, that sureties of an executor or administrator are not liable for money received by him ’beyond the scope of his rights and duties as an executor or ; administrator. Arbuckle v. Tracy, 15 Ohio Rep. 432; Quinby v. Walker, 14 Ohio St. Rep. 193; Waldsmith v. Waldsmith, 2 Ohio Rep. 161; McCoy v. Gilmore, 7 Ohio Rep. 268; Chapman v. Loveland, 11 Ohio St. Rep. 217, 218, 219; Toller on Executors, 439, 440; Barker v. Parker, 1 T. R. 295; Fx parte Garland, 10 Vesey, 119, 120, 121; Clay v. Hart, 7 Dana, 12; Coney. Gilson, 8 Watts, 214; Fletcher v. Weir, 1 Dana, 345; Slaughter v. Froman, 2 Mon. 95; Oldham v. Collins, 4 J. J. Marsh. 49; McCampbell v. Gilbert, 6 J. J. Marsh. 592; Moore v. Waller, 1 A. K. Marsh. 488; 11 Serg. & R. 441; 17 Serg. & R. 392; 3 Ban. 251.
    III. The language of the bond covers only the administration of the bona iestatoris,- — as the bond has it, “ His (the testator’s) goods, chattels, rights, credits, and the proceeds of the real estate sold for the payment of debts and legacies.” It icovers only the assets.of the decedent in the restricted sense , of-the things ...left ini-specie by the-testator, together with the regular increment thereof as interest, or from the action of the testator before his death. Saffron v. Kennedy, 7 J. J. Marsh. 188; Blizzard v. Filler, 20 Ohio Rep. 479; Ennis et al. v. Smith et al., 14 Howard (U. S.), 400; Reed v. Commonwealth, 11 S. & R. 441.
    The profits accruing from the management of the brewery are not strictly assets of John Walker — de bonis testatoris,— his goods, chattels, credits, etc., in the language of the bond.
    IV. It will be observed, that the plaintiffs below offered no evidence whatever in regard to the alleged indebtedness of Thomas Webb to the estate of John Walker, deceased. They relied on the allegation in their petition that a judgment had been recovered against Webb in the superior court of Cincinnati for the sum now claimed, and that, therefore, the probate court had ordered said Thomas.Webb to pay over said amount. Now, the superior court clearly had no jurisdiction to render a judgment against Thomas Webb as executor. The fact that the superior court entertained jurisdiction,, and rendered judgment against Thomas Webb clearly shows that that court treated Webb as a special trustee, administering a trust distinct from the general trust devolving upon an executor, as to which the executor, under our law, would be amenable in the first instance to the probate court alone.
    A mere order founded upon such a judgment, as.alleged in the petition below, is not a judgment against the executor, which is even prima farde evidence against his sureties. And it certainly is not conclusive evidence. Williams v. Hinkle, 15 Ala. 713; Ennis v. Smith, 14 How. (U. S.), 400; Pratt v. Northern, 5 Mason, 95; Todd v. Lewis, 2 Handy, 280; 5 Barr, 359; 10 Barr, 243; O’Conner v. State, 18 Ohio Rep. 225.
    But we go further. We claim, that the defendants in error, by their own showing, — by the averments of their petition, — are precluded from denying that the money now sued for, if due at all, is due from Thomas Webb as snecial trustee.
    1. They not only themselves aver, that the superior court of Cincinnati has settled the trust in question, but they predicate their entire right of action upon the judgment of the superior court. Now, the superior court could not render judgment without deciding that it had jurisdiction. And it had no jurisdiction if the amount due from Webb, was due from him as executor. S. & C.’s Stat. p. 1212; McLaughlin McLaughlin, 4 Ohio St. Rep. 508. The judgment of the superior court set up by the defendants in error themselves as the sole basis of their claim is an adjudication, therefore, of the very question now in controversy — an adjudication of this question against the defendants in error, and in a case to which they were parties according to their own allegation.
    2. That the plaintiffs below do not aver in their petition, that the probate court .has ascertained the amount due from Thomas Webb, but that the superior court of Cincinnati, has ascertained it, and that, thereupon the probate court has made an order. Now, the plaintiffs belowy sue, not as creditors of the estate of John Walker, deceased, -but as legatees. But legatees can not sue upon an executor’s bond, until the probate court has “ ascertained ” the amount due to such legatees. S. & C.’s Stat. p. 602, sec. 178.
    It may be claimed, that the order of the probate court is a sufficient ascertainment of the amount due in the sense of the statute. But the language of the petition is, that “ it was ordered by the probate court.....that the said Thomas Webb, as executor aforesaid, should on demand, settle and pay over to them, the said plaintiffs, the amount aforesaid, ascertained and adjudged by the superior court of Cincinnati.” This is all the case the plaintiffs below made, for they offered no evidence. Their allegation amounts simply to this, that something in the nature of proceedings in aid of the execution of the superior court was attempted in the probate court, and resulted in nothing. The plaintiffs, if they recover at all, must recover upon the theory, that the superior court of Cincinnati had no jurisdiction, and they aver, that the probate court sought to come in aid of, and enforce that jurisdiction!
    
      
      George P. Pugh, also argued the case, orally, for plaintiffs in error.
    
      King Sf Thompson, for the defendants in error :
    I. The undertaking of the sureties is as broad as the will, and applies, directly, and in terms, upon its very provisions. It is not like the bond of an administrator, whose office and duties are merely by-the’Statute. These sureties obligate themselves expressly that the executors “ shall pay the debts and legacies” and “ administer the estate according to law and to ihe will.”
    
    The plaintiffs in error undertook that Thomas Webb would faithfully execute this will, wherein the “ executors ” are directed, in the fourth clause, to carry on the testator’s brewery for seven years “ for the benefit of my estate.” The sixth clause gives all the rest and residue of the “ estate ” to the same beneficiaries (the defendants in error), who took the brewery property at the end of the business so reserved. In the seventh clause the “ executors ” are authorized to carry out all the testator’s “ arrangements and contracts,” collect and continue loans, “ but not to make new loans” all however to be collected in seven years. And still repeating the same idea, the testator in the eighth clause gives an annuity, to be paid by his “ executors,” for the period of seven years, to the widow of a nephew. It is not discovered until the eighth clause who are the “ executors,” and here again they are in one general phrase authorized to “ carry out the will.”
    The defendants in error get no moneys here except from the executors, and as a legacy. Whether the profits of the brewery are theirs by virtue of the “ proceeds ” in the fourth .clause, or of the residuary bequest in the sixth clause, their right, either way, accrues to them directly as legatees. No trust estate is interposed between them and the executors. Even as to the residuary estate the executors may postpone the division for seven years by extending the loans. The profits of the brewery business may, as part of the testator’s estate, be distributed by the executors under the eighth clause of the will as often as sufficient sums accrue; and this construction, practically adopted by the executors, must have been the testator’s intention.
    These profits being a legacy, the question simply arose upon the bond, whether the executor did faithfully account and pay it over; and the court of common pleas has decided that he did not, and that his sureties are liable.
    II. The judgment below is attacked, first, upon the assumption that the sureties are held for moneys which were not assets of John Walker’s estate, because, wholly or in part, the fruit of the continuance of the brewery business after the testator’s death. But the obiection is not sustainable either in fact or in law.
    The evidence shows that the brewery was continued oy carrying into that business $41,000 of moneys and effects of the estate, for which Webb continued unquestionably liable as executor ; and that the judgment recovered by the legatees against Webb was for moneys which he drew out of that fund on a pretended claim for salary which the court on final settlement disallowed. It is proven explicitly that these misappropriations by Webb were carried on “from the beginning.” Won constat, therefore, but that the whole defalcation occurred before the advances by the estate to the brewery had been refunded by its earnings. It does not appear at what period the accounts turned in favor of the brewery and against the estate. There is no evidence that any part of the judgment consists of the profits.
    But we claim as a legal proposition that the sureties are liable even if the entire defalcation had been of the profits. The will is express, that this business is to accrue to the benefit of the estate. The statute is peremptory that the executor shall be chargeable.with all the interest, profits, and income that shall, “ in any way,” come to his hands from the personal estate. Being thus made assets, the statute equally binds them to be administered according to the will
    III. It is claimed, also, that there is a restricted sense of the bond; that the Sureties are bound only for the strict scope and letter of its condition; and that there is no construction nor equity against them.
    This we may safely admit. We are asking no construction or intendments. We stand upon the letter and circumstance of the undertaking; for on the face of it there has been a breach by the executor. The legacy has not been paid; the assets have not been administered according to the will; the executor is in default. It is the sureties, be it observed, and not us who are seeking by implications to avoid the plain conditions of the bond. This case does not come within the construction in Medary’s case. 17 Ohio Rep. 554. The testimony shows that the executors carried on the brewery business in their capacity of executors.
    IV. The plaintiffs in error go further, and assert that they are not liable, because the moneys sued for, if due at all, were due from Webb as a “special trustee;” and this is the construction of the bond which is most relied upon for their discharge.
    Here again the very letter of the contract is strongly against them. It is only as executor and virtute officii that Webb obtained any power or control over this business. It is the “ executors,” and not Stewart and Webb by name or specifically, who are appointed by the fourth clause of the will to carry it on. No mention of a trust or trustee appears in the will. If Webb had renounced his nomination as executor, he could have asserted no trusteeship in the 'brewery.
    V. But a trust, distinct from the general administration of the estate, is contended for on the ground that the subject of the fourth clause is the brewery property alone; which would be very inadequate ground for disregarding the express direction that the executors are to perform it, and the avails are to go to the general estate. Eurther force is supposed to attach to this theory, from the evidence that the executors separated the brewery matter from the administration of the estate, kept separate books and accounts of its affairs, and managed it very much as any other mercantile concern • and, in regard to the capital, conducted it in the same way as though they had borrowed $41,000 from an outside party.
    But how does this comport with the will, which neither appoints a trustee nor sets apart the least fund or capital for a .trust, but expressly prohibits the executors from making to any outside party this loan of $41,000 which is the vital part of the separate • trust. Here again it is to be observed that these sureties, so far from staying upon the words of the bond, call upon the court to blot out the very terms of the will, and disregard its clear provisions, to help their defense.
    VI. It is argued, however, that the legatees are precluded by their own showing from denying that the money now sued for is due from Webb as special trustee, because their petition alleges that the suit in the superior court of Cincinnati, wherein they recovered judgment against him, treats it as a trust under tbe fourth clause of the will, and proves that the superior court must have so considered it. It is contended, in fact, that 'the court must necessarily have taken jurisdiction on that ground, and that it had no jurisdiction if the debt was due from him as an executor merely. .•
    It is difficult to understand whether the plaintiffs in error do or do not submit to the judgment of the superior court thus adduced. It is at least prima facie evidence against them. We suppose that by thus actively relying upon it they make it conclusive, and, if so, it is an end of this case; the finding and judgment being that upon'a full and final settlement of the accounts of said Thomas. Webb as one of 'said executors, by the consideration of said court the sum of $9576.32 of the moneys, assets of said brewery and estate, was found to be in his hands separately on the 20th of June, 1860, which he, the said Thomas Webb, as one of the .said executors, was held and adjudged to pay the plaintiffs as devisees under said will. This is to the point
    How the case got into the superior court is immaterial, inasmuch as it appears to have been instituted by the executors, of whom the plaintiffs in error are privies. We can suppose that the executors filed a petition just before the close of the seven years, praying a construction of this will and the order and advice of the court. This might account for the jurisdiction of the court, even if its character did not import the absolute verity of its proceedings.
    VII. The just rule for all such cases, is that which was enforced in the State v. Alden’s Sureties, 12 Ohio Rep. 59, and Peabody v. The State, 4 Ohio St. Rep. 387; where it is held that the obligation in official bonds for the faithful performance of duties, continues until performed by payment of the money to the party entitled to it, and so long as it remains unperformed, so long the sureties are responsible upon the bond for its violation. See also People v. Byron, 3 Johns. Cases, 53.
    
      S. $■ S. B. Matthews, for defendants in error, also :
    I. The fund represented by the judgment against Webb, was assets in his hands for which he is liable to account as executor, and for which, on his default, his sureties are liable. Sheppard’s Touchstone, 496, as quoted by 2 Williams on Executors, 1496, citing Gibblett v. Read, 9 Mod. 459; Pitt v. Pitt, 2 Cas. temp. Lee, 508; see also 2 Williams on Executors, 1668, citing Palmer v. Mitchell, 2 M. & K. 672; Willett v. Blandford, 1 Hare, 253; Cooke v. Collingbridge, Jacob, 607; Marshall v. Broadhurst, 1 Crompt. & Jerv. 405; Edward v. Grace, 2 Mees. & Weis. 190; Dakin v. Cope, 2 Russ. Ch. Cas. 170; Garret v. Noble, 6 Sim. 504; Collinson v. Lister, 20 Beav. 356, 365; Fay v. Taylor, 2 Gray, 154.
    But our own administration acts settle the question. S. & O.’s Stat. 598, secs. 162, 163; lb. p. 567, sec. 3.
    The executor does not administer according to law and the will of the testator, the goods, chattels, rights and credits of the deceased, unless he accounts for the profits and income which he may derive from any use he makes of them.
    It may be said that the property from which the fund here in question was derived as profits, did not come into the hands of Webb as executor, but in some other capacity, as trustee, or as a manager employed by the executors.
    
      ■ 1. It did not come to his hands as devisee or legatee in trust, because there is no devise or bequest to him. *
    It is simply a direction to the executors, as such, with respect to the management of personal estate, the title to which was cast upon them by the act of the law, as executors, a title which, in case of a vacancy in their office, caused by renunciation, death, resignation or removal, would have devolved upon a successor in office, by virtue of his appointment. If, therefore, there be any trust, created by the words of the will, it is a trust, incident to the administration, and attached to the duties of the office of executor and inseparable from it; and not one devolving upon him as an individual, distinct from his official character, and following a title to property created by the will, for the use of some beneficiary of the testator’s bounty. 2 .Williams on Executors, 1629; Armstrong v. Cooper, 11 Ill. 560; Buchanan v. Pire, 6 Gill. 115; Beale v. Hilliary, 1 Md. Rep. 189; Somerset v. Somerset, 3 Gill. 276; Mucklowe v. Fuller, Jacob, 198; Booth v. Booth, 1 Beav. 125; Stiles v. Gray, 4 Y. & Coll. 571, 575; Williams v. Nixon, 2 Beav. 472 ; Hill on Trustees, 237, 364; Byrchall v. Bradford, 6 Mad. 235; DePeyster v. Clendenning, 8 Paige, 310; Pyron v. Mood, 2 McMullen, 288; Ex parte Dover, 5 Sim. 500; Phillips v. Mannings, 2 M. & Cr. 309, 315; Page v. Leapingwell, 18 Ves. 463; Fx parte Chadwin, 3 Sw. 380; Wilmot v. Jenkins, 1 Beav. 401; Newman v. Williams, 10 Law Journal, N. S. Chan. 106.
    2. But in the present case there is no trust at all. There is no bequest to the executors for any special object. Their title to the property represented in this suit, was the same as their title to the whole personalty of the testator, simply as executors. See Ennis v. Smith, 14 How. 400; Hall v. Cushing, 9 Pick. 395; Conkey v. Dickinson, 13 Metc. 51; Prior v. Talbot, 10 Cush. 1; Dorr v. Wainright, 13 Pick. 328; Towne v. Ammidown, 20 Pick. 540; Prescott v. Pitts, 9 Mass. 376; Necomb v. Williams, 9 Metc. 525; Almond v. Mason, 9 Grattan, 700; State v. Nichols, 10 Gill. & Johns. 27; Adams on Eq., 251; Bond v. Graham, 1 Hare, 482, 484; Arthur v. Hughes, 4 Beavan, 506; Penney v. Watts, 2 Phill. Ch. Cas. 153.
    It is impossible to separate Webb’s responsibilities as manager of the brewery and as executor. But supposing the distinction could be made in this case, the default complained of is not that of the manager of the brewery, but of the executor, in making to him illegal payments. See Pistor v. Dunbar, 1 Anstr. 107; also Ghost v. Waller, 9 Beavan, 497; Matthews v. Brise, 6 Beavan, 239; Rowlan v. Witherden, 3 Mac. & G. 568; Lord Cottenham in Clough v. Bond, 3 Mylne & Craig, 496.
    It is broadly insisted by counsel for plaintiffs in error, in argument, that although the title to the personal property invested in the brewery business, devolved, on the death of John Walker and probate of his will, upon his executors, in their representative capacity, yet that under the fourth clause of his will there was a devise and bequest to them, as trustees for the defendants in error, of the real and personal estate, constituting the brewery property, whereby they were vested with the legal title to the same in trust, to carry on the brewery business for the term of seven years, for the benefit of the cestuis que trustent, and at the end of that term to deliver possession to them of the same, and the proceeds thereof; and that this provision took effect to pass the title to them as trustees of the legacy on their assent to it as executors, from which period their liability as executors ceased, and that of trustees began.
    This claim involves several assumptions, none of which are supported by the will, but on the contrary all of which are contradicted by it.
    1. The first is, that there is any devise or bequest to the executors at all.
    2. The second is, that the beneficiaries of this supposed trust are the defendants in error, as legatees under the fourth clause of the will. The language of the will is that the business was to be carried on for seven years, “for the benefit of 1 my estate.”
    
    
      3. Another absurd consequence of the construction contended for by counsel for plaintiffs in error, is that if the fourth clause of the will is to be held as a devise and bequest of the brewery property to the executors, as trustees in trust to carry on the business for seven years, there is a trust created without the means of performing it.
    4. Another untenable suggestion of counsel is, that the fourth clause of the will being to carry on the business for seven years, puts it out of the power of the executors, as such, to obey it, because the law requires them to administer the estate within eighteen months, from which, it is inferred, that they must carry it on, not as executors, but as trustees.
    But this is inconclusive. If the law imperatively requires executors to wind up the estate in a certain time, and the will authorizes them to extend it beyond that time, that only proves that the direction in the will is illegal, and not that the executors are trustees.
    II. What is the legal effect of the judgment in the superior court of Cincinnati in favor of the defendants in error against Webb, and of the order of the probate court requiring him to pay to them the amount of said judgment ?
    In O’Conner v. The State, 18 Ohio Rep. 228, the court say : “ The judgment against the administrator is prima facie evidence against the surety in the bond, and he can only impeach it by proof of collusion or mistake.”
    By sec. 183 (original) of the administration act, 1 S. & C., 602, suit may be brought on the bond “ by a legatee after he shall be entitled to the payment of his legacy, and by the widow or other distributee, to recover his or her share of the personal estate, after an order of the court ascertaining the amount due to him or her, if the executor or administrator shall neglect to pay the same udien demanded.”
    The condition of the bond is “ to administer according to law and the will of the testator, all his goods, chattels, rights and credits,” etc.
    Now the law speaks in judgments of its judicial tribunals, and administering according to law, includes obedience to all orders and judgments of competent courts, made in reference to the administration.
    If, therefore, a court of competent jurisdiction finds and declares that certain parties are legatees, that they are entitled to the payment of their legacies, that a certain amount is due them on account thereof, and the executor, on demand, refuse payment, the breach of the condition of the bond is complete.
    No attempt is made in this case to impeach the judgment of the superior court on the ground of fraud. The fact of its rendition, as set forth in the petition, is admitted.
    That judgment finds that the plaintiffs below are legatees, that they are entitled to the payment of their legacy, that a certain amount is due them from Webb on account thereof, as executor, which he refuses to pay.
    These facts, we contend, it is not open to the present plaintiffs in error now to question. Heard v. Lodge, 20 Pick. 53; Vide 6 Gray, 368.
    The proceeding and judgment as set forth show expressly that they are against Webb in his official capacity as executor, and no inference against the express terms of the record can be admitted.
    The superior court of Cincinnati as a court of law and equity had jurisdiction of such a suit, brought either, as in this case, by the executors to obtain the advice of the court as to their duties and the rights of the legatees, or by the legatees to have the amount due them ascertained, and its payment enforced.
    And, if in the course of such a suit, it became necessary to the adjudication to examine and settle the account of the executors relating to the subject, it was incidental to the jurisdiction to do so, and its judgment thereupon would be final and conclusive.
    The statute (1 S. & C. 621, sec. 8), expressly confers jurisdiction in such a case as the one now in question, upon the court of common pleas, and recognizes the practice in chancery over the subject.
    
      The same jurisdiction is vested in the superior court of Cincinnati, by the eighth clause of the fourteenth section of the act which established it. 1 S. & C. 390.
    The ancient and general jurisdiction of courts of chancery over legacy suits is not taken away, either expressly or by any implication, by any of our statutes relating to executors and administrators or the jurisdiction of courts of probate. Gould v. Hayes, 19 Ala. 438.
    . By sec. 183 of the administration act (1 S. & C. 602), before a suit can be brought by a legatee to recover his or her share of the personal property, there must be an order of the court ascertaining the amount due to him or her. The purpose of this order of the court is to ascertain the amount due; and must mean the order of that court which by law is invested with power to hear and determine the suits brought for that purpose.
    The existence of .such an order is not denied in the pleadings, nor is any bar to its effect set up. It is questioned only in argument, and upon the ground that it is founded solely on the previous judgment’ of the superior court of Cincinnati. This we conceive is no objection to the order of the probate court. 1. Because the judgment of the superior court would be sufficient evidence of the amount due to the legatees. 2. Because it does not appear from the pleadings, on what evidence the probate court acted, and it is to be presumed in favor of their judgment, not otherwise questioned or impeached, that that court acted upon legal and sufficient grounds. The reference to the previous judgment of the superior court serves only to identify the two sums received in the respective judgments as being the same fund, and is the language of the pleader, and not of the order of the probate court.
    
      Stallo § Kittredge, in reply:
    I. The bond is precisely the statutory bond, with the addition simply of the words, which bind the executor, “ to pay the debts and legacies” “according to law.” Now, these words, so far as they are of any validity (for literally con strued they are invalid, inasmuch as they purport to guarantee the payment of the debts and legacies, even though the estate should prove insolvent), do not add any thing whatever to the words prescribed by statute; for a proper administration of the estate includes the payment of the debts and legacies.
    But it is said, the sureties obligate themselves to “ administer the estate, according, to law and the will;” and thus it is argued, that the obligations of the bond are co-extensive with the trusts created by the will. Now, a simple inspection of the bond shows, that it creates no such obligation. The condition of the bond is, not “ to administer the estate, according to law and the will,” but to “ administer, according to law and the provisions of the will of the testator, all his goods, chattels, rights and credits, and proceeds of all his real estate, that may be sold for the payment of his debts and legacies!” And this disposes of the two authorities chiefly relied on for the defendants in error, Dorr v. Wainright, 13 Pick. 328, and Towne v. Ammidown, 20 Pick. 540, where the condition of the bonds was “ to administer the estate according to the provisions of the will.”
    II. It is claimed for defendants in error, that the fourth clause of the will -creates no special trust:
    
      First. Because there is no devise or bequest to the executors at all in trust for any person.
    To this we reply, that it is not necessary, to the creation of a trust, that there should be technically a devise or bequest.
    
      Secondly. Because, under the fourth clause of the will, the brewery was to be carried on for the benefit of the estate, and, therefore, if there were a trust, the executors themselves would be the eestuis que trustent.
    
    We have already shown that a reading of the whole clause makes it evident, that the defendants in error are the eestuis que trustent.
    
    The third ground, upon which it is claimed, that intrusting the management of the brewery to the executors was no devolution, of a separate trust, is, that, treating the brewery business as such a trust, would involve the absurd consequence, that a trust was created without the means of performing it.
    This alleged absurdity vanishes at once, if we recollect, that the trustees and executors are the same persons. This personal identity does not necessarily prove an identity of functions, though the executors should, in the discharge of all their several functions, describe themselves, and be described in the will, as executors only.
    But it is claimed, that in the present' case there is no difference between the subject of the general executors’ trust, and that claimed by us to be special. It is said there must be a separation of funds, of accounts, etc.
    We submit, that the line of demarcation could not be more clearly drawn, than it was actually drawn in this case. A definite sum of money was borrowed from the estate; separate accounts were kept, the executors’ accounts were settled and the.trust accounts left unsettled, etc. What more was there in the case of Phillippo v. Munnings, 2 Mylne & Craig, 309, 315 (cited in Hill on Trustees, p. 337), where the same person was also both executor and trustee ?
    In this connection, the language of Mr. Hill (on Trustees, pp. 237 and 864) is very significant.
   Welch, J.

The questions argued in the case are reducible to two : 1. Were the sureties liable for the brewery funds— the assets invested in the brewery, and its proceeds ? 2. If so, has the necessary proceeding been had against their principal, to authorize a suit on their bond ?

Both questions, though presented in different forms, arise at every stage of the case. They are made by the demurrer to the original petition; by the demurrer to that part of the akswer denying notice; by the testimony set out in the bill of exceptions; and now by the petition in error. In each place they are substantially the same questions, and their solution disposes of the entire case.

Let us consider them in their order.

1. Were the sureties liable for the administration of the brewery funds? That is, were these funds assets, or were they a separate trust fund; and if the latter, were the sureties bound by the terms of their bond for its management and disposition ?

It is very difficult, in many cases, to draw the line between assets and trusts, where the executor sustains at once the character of executor and trustee. The books furnish numerous cases of the kind, and the authorities are to some extent conflicting. Perhaps no inflexible rule can safely be laid down to show, with certainty, where the estate ends and the separate trust begins. Every case must necessarily depend more or less on its own peculiar circumstances. And yet we are not wholly without rules and guides on the subject; and it seems to us that they unmistakably show that these brewery funds are to be regarded as part of the assets of the estate.

In Sheppard’s Touchstone (496) it is said, that whatever comes to an executor “ in lieu of the testator’s property,” or' “by reason of” his “ right of executorship,” shall be assets in. his hands. The profits of a trade or business, carried on or' continued by the executor, in pursuance of the will, have always been held to be within this definition.

In 2 Williams on Executors (1498), the author says: “Whether the executor takes upon himself to carry on the' trade, or does so in pursuance of a provision in articles of partnership entered into by the deceased, or by the direction' of the testator, contained in his will, or under the direction of the court of chancery, the profits ftf such trade shall be assets, for which he shall be accountableciting Gibblett v. Read, 9 Mod. 459; Pitt v. Pitt, 2 Cas. temp. Lee, 508. See also 2 Williams on Ex’rs. 1668, citing Palmer v. Mitchell, 2 M. & K. 672; Willett v. Blandford, 1 Hare, 253; Cooke v. Collingbridge, Jacob, 607.

Our administration law (1 S. & C. 598) provides a.s follows :

Sec. 162. “ Every executor or administrator' shall be' chax-geable with the amount of the sale bill, as hereinbefore.' provided, and also, with all goods, chattels, rights and credits of the deceased which shall come to his hands and which are by law to be administered, although they should not be included in the inventory or sale bill; also, with all the proceeds of real estate sold for the payment of debts or legacies, and with all the interest, profit and income that shall in any wajf come to his hands from the personal estate of the deceased.”

Sic. 163. “ No profits shall be made by executors or administrators by the increase, nor shall they sustain any loss by the decrease or destruction, without their fault, of any part of the estate.”

I admit that a testator may direct the continuance of a trade or business by his executor, as trustee, independent of his executorship; and such cases often occur. But they are always either where there is a devise or bequest to the executor in trust, or where part of the assets are specifically set apart, and directed to be invested as a trust fund. In the former case the executor receives them' at once as trustee, ¡and they never become assets. In the latter, they are received by him as executor, and remain assets of the estate dill so set apart and invested. But the setting apart must be ¡distinct, complete and final. It must separate the fund from the .assets of the estate, and from the control of the executor as such, as perfectly as the payment of a legacy separates it from the estate, and casts the burden of managing and controling it upon the legatee in trust. And where the executor is to be held as acting in both capacities, it must plainly appear that such was the intention of the testator. The executorship itself., is a trust, and every provision in the will regarding the management of the assets, before they pass out of the executor’s hands into those of the beneficiaries, will prima facie be held as coming within that trust; and the contrary intention must be made plainly to appear. As a general rule, the duties of the executor, as such, are co-extensive with the provisions of the will; and it is only in cases of unmistakable intention, or of inherent necessity, that a separate character will be assigned to him.

Now, what are the facts here ? and what are the provisions of this will ? The testator was carrying on a brewery, and he had a large estate beside. By his will, he directs the executors to continue the brewery for seven years, “ for the benefit of the estate.” He expressly forbids their making “ new loans of money,” and provides no means, other than the assets of the estate, for carrying it on. He makes certain specific pecuniary bequests, to be paid immediately, and one bequest payable in monthly sums during the whole period of seven years. The residue of the estate he gives to the defendants in error; and he directs that the brewery and its “proceeds” shall be delivered up to them at the end of the term. He also requires that distribution shall, from time to time, be made to these residuary legatees, whenever sufficient sums of money accure for that purpose. In other words, the testator embarks the entire estate, except the legacies made payable immediately, and except also the portion of the widow, should she refuse to take under the will, in the business of the brewery. It was to be carried on for the benefit of the estate, and must therefore be carried on at the expense and risk of the estate. This is the plain reading of the will, no matter what meaning you give to the word “ proceeds.” Whether you understand by that term profits, thus requiring all the avails of the brewery to be tied up for seven years; or whether you understand by it appurtenances, thus leaving the profits to be distributed as they accrue, the result is the same. The brewery business was the business of the estate. There was no devise or bequest to the executors, either of the brewery, or of the funds necessary to carry it on. It does not, then, come within that description of trust. Does it come within any other? How can we distinguish between this alleged trust fund and the other assets of the estate? Where shall we draw the line ? In what did the trust fund consist, and when did it cease to be assets and become a trust fund ? If the $41,000 became a part of the trust fund when set apart for the brewery, what did it become when restored again to the estate ? To what funds should the legatee, entitled to monthly payments, look for her indemnity? To what funds should the creditors look, in the event of the failure of other assets ? What part of the money in bank, in the name of the executors, was trust funds, and what part assets ? And how can you distinguish one from the other in the executors’ account rendered in the probate court? The simple asking of these questions shows the impracticability of separating between this alleged trust and the assets of the estate. The two are inseparably blended, as parts of the one grand trust created by the will. In the mind of the testator the two trusts were a unit, both together constituting his plan for administering the estate. It is difficult to conceive how the duties can be divided, or assigned to two trustees at the same time; and it is more difficult to conceive, when the same person undertakes the whole trust, how his sureties can bind themselves for the performance of one part of the trust and not for the other, or how the trustee could be removed, as such, without also removing him as executor.

There is in this will, beyond ordinary bequests, nothing more than a simple direction to the executors, to retain a portion of the assets for a limited time, with a view to their increase, before paying them over to the parties entitled. During their retention, the power of the executors over them is complete and exclusive, and the legatees have no rights or equities till the period fixed for payment arrives. When they are paid the legatees take them absolutely, and discharged from all trusts and conditions; and they take them, not as beneficiaries under a trust, but as residuary legatees under the will. They take them, not as proceeds or profits of the brewery, but as the residuum of the estate, composed of the balance of the other assets, and also of these profits, without any possible means of determining how much arose from either source. Before such payment they are assets, liable to the payment of 'creditors, and not subject to the control of legatees. And should creditors now appear, the executors are liable to them for this $9576.32. When it is paid to the legatees, and not till then, they are discharged from liability.

We are unable to see any foi'ce in tbe objection, that tbe statutory form of an executor’s bond, has not words sufficient to bind the sureties for such a trust. The statutory form is conditioned, for the executors “ administering” the estate, according to the law and the will.” That it has not been administered “ according to the will,” is the very thing complained of; and that it should be so administered is one of the things, and the principal thing, for which the sureties vouched.

Nor do we think the bond is vitiated by the fact, that in addition to the statutory form, it contains a provision that the executor shall pay the debts and legacies of the estate. Even were it true that this residuum and brewery property are a separate trust, in the sense claimed by counsel, still it was competent, and might by law have been required by the beneficiaries, that the trustee should give bond for the faithful performance of the trust. And will any one say, that the same parties might not bind themselves, in the same bond, for the performance of both trusts ? That is precisely what was done here ; and if the parties had executed two bonds, instead of one, both together would have contained substantially what is in this bond — nothing more, nothing less. One would have been conditioned that he should administer the estate, and the other conditioned that he should account for these residuary legacies, or trust funds. The parties chose to put the whole undertaking in a single bond, and we see no reason why it should not be enforced.

The same reasoning disposes of the objection, that this trust protracts the settlement of the estate, beyond the statutory period of eighteen months. For, whether it be a trust or an administration, the sureties, by the words of their bond, became responsible for its fulfillment. But it is not for the executor or his sureties to object on account of time. They should have made this objection when they were called upon to sign the bond. The limitation of time was not fixed for their benefit, but for the benefit of creditors and legatees. And although the statutory eighteen months may expire, and further time to the executor be refused by the court, he still remains executor of the estate notwithstanding his default, and is still subject to all the liabilities and rights of the office, until the estate is fully administered, according to the law and the will. The statute (1 S. & C. 597) requires him to file accounts every twelve months, after the eighteen months have expired, “ until the estate shall be wholly settledhe is made liable to actions, so long as assets continue to come into his hands; and his power to collect the assets is unlimited as to time. See S. & C. 586, sec. 102, and id. 577, sec. 63. n

2. Admitting, then, that the sureties stand liable for the executor’s default as to those residuary legacies, or this trust fund, was a proper foundation laid, by showing a default in the executor, or an order of the proper court finding the amount in his hands, to justify a suit upon the official bond against the sureties ?

If the counsel for plaintiffs in error are correct, in claiming that this was a separate trust fund, and if the court is right in holding that the bond is broad enough to cover it, then the case is clear. ' Eor, it being a trust fund, unconnected with the administration of the estate, the superior court had complete jurisdiction, and its judgment would be conclusive against the trustee, and prima facie evidence against the sureties. In that case no finding or order of the probate court was necessary or admissible, and an action could be brought upon the bond without it. Nothing but the bond and the judgment against the principal, would be necessary to make a case against the sureties.

But if these were not trust funds proper, and the defendants are to be regarded as ordinary legatees, it is claimed that before suit can be brought by them, upon the official bond, there must be an order of the probate court finding the amount due; or a general order for the distribution. And it is claimed, on the other hand, that if such is the proper construction of the statute, yet where another court has, in the exercise of its jurisdiction, as a necessary part of the case, made the same finding and order, it will stand for, and super-cede the necessity of the order of the probate court.

We deem it unnecessary to decide either of these questions in the present ease. We are of opinion there was a sufficient order made by the probate court. That court ordered the executor to pay over the $9576.32, the amount of the judgment in the superior court. That order implies, and is equivalent to, an order finding the amount due. It must be presumed, that a court will not order the payment of money which it does not find to be justly due. Besides, the order was perfectly equivalent to an order for general distribution, this sum being the whole balance of the estate in the executor’s hands. We can not inquire, collaterally, on what evidence the court found the amount due. If the court chose to make the judgment of the superior court the basis of its finding, it can not now be invalidated by showing that fact. It is enough now to show that the probate court did find the amount due, or make the order for distribution.

We are of opinion, therefore, that the sureties were bound for the executors’ faithful discharge of their duties in regard these brewery funds, and that the judgment of the superior court, with the order of the probate court, and the default of the executor, was sufficient to enable the legatees to bring their suit on the bond.

The judgment of the common pleas is affirmed.

Brinkerboef, O.J., and Scott, and White, JJ., concurred.  