
    Moses B. Coburn versus Catherine Ansart and Joseph Locke, Esq., Trustee.
    One who has collected for an executor the amount due on a promissory note made payable to A. JB., executor, &c., is liable to a foreign attachment as the trustee of A. B. in a suit against him, for a demand due from him personally.
    The only question m this case was, whether Mr. Locke, from the facts disclosed in his answer to the interrogatories put to him, was the trustee of the principal defendant.
    The answer states that at the time of the service of this process, Mr. L. had in his hands 189 dollars, 53 cents, which he had received as attorney to said Catherine, upon a note of hand, of which the following is a copy:—“ For value received, I promise to pay Catherine Ansart, executrix of the last will and testament of Lewis Ansart, Esq., deceased, one hundred and eighty-seven dollars, and seventy-six cents, in ninety days from the above date, with interest ”—signed, “ Moses B. Coburn.”
    Upon the answer being read, the Chief Justice and Parker, J., signified an opinion that Mr. Locke must be adjudged the trustee of the defendant, on the ground that an action by her to recover this money might be brought in her own right, and not in her capacity of executrix ; but Sedgwick, J., appearing to hesitate,
    
      
      Steams, for the plaintiff,
    observed that this question is to be decided solely on facts contained in the answer . But if it were admitted that it appears from this answer, that this ^note was given for a debt due to the testator, still the [ * 320 ] tiustee is liable. For the appointment of an executor is a gift in law of all the testator’s goods  ; and they are so completely his, that not only has he a power to dispose of them at pleasure, but a gift of all his goods will pass those which he has as executor, as well as those in his own right . And the specific chattels of the testator may be taken in execution upon a judgment for the executor’s own debt .
    But it is contended that this is entirely the personal contract of the defendant. For it is no part of the business of an executor to give or take notes of hand or bills of exchange ; and when he does so, he acts in his personal, and not in his representative capacity. And taking a promissory note is quasi payment; and its amount becomes assets in the hands of the executor immediately, and before recovery; so that he is answerable for the amount, whether he ever receives it or not. Indeed, in every case, where the transaction arises wholly subsequent to the death of the testator, the contract is the act, and consequently the money due by it is the property of the executor. The defendant could not have maintained an action in her character of executrix upon this note . If a suit had been commenced on this note, the promisor could not have set off a demand on the testator’s estate; but he might have set off a debt due from the executrix .
    The question is very different from what it would have been it the original debtor were the trustee, and the note not negotiable. The present trustee was certainly intrusted by the defendant to receive this money for her, and comes precisely within the meaning of the statute, on which this process is founded. And if it were admitted that the security was a chose in action, in nature of a specific chattel, it is now converted into money. And whenever the testator’s money comes to the executor’s hands, the property is changed; * and even the specific cash, which the [ * 321 ] testator leaves at his death, becomes the money of the executor, and is not liable to be taken in execution as the goods of the testator .
    
      
      
        Comstock vs. Farnum & Trustee, 2 Mass. Rep. 96.
    
    
      
      
        Shepherd,'s Touchstone, 226.
    
    
      
       Ibid. 94.—10 Co. 4.
    
    
      
      
        Quick & Ux. vs. Staines, 1 Bos. & Pul. 293.—See also the argument of Buller, J., in Farr. vs. Newman, 4 Term R. 634, et seq.
    
    
      
      
        Betts vs. Mitchel,10 Mod. Rep. 315.—Ord vs. Fenwick, 4 Term R. 104.—Henshall vs. Roberts & Al., 5 East’s R. 150.—1 Smith’s Rep. 375. S. C.
    
    
      
      
        Shipman vs. Thompson, Willes’s Rep. 103.
    
    
      
      
        Toller's Law of Executors, 238.
    
   By the Court

(ábsente Sewall, J.). The money the trustee holds is Mrs. Ansart’s, and to her only is he accountable; he is her debtor, and her demand is well attached by this process . 
      
       [If the money was due to the trustee as executrix, it was trust property, and ought not to have been taken for the payment of her own debts.—Farr. vs. Newman 4 D. & E. 621 .—Gaskell vs. Marshall, 1 Moody & Rob. 132.—Ed.]
     