
    In Bank.
    Dec. Term, 1846.
    Andrew Arbuckle’s Executors vs. Benjamin F. Tracy’s Administrators.
    If notes be delivered to an executor to indemnify the estate against a liability where the testator was a surety, such notes and the money collected on them are not the property of the estate, and the estate is not liable for the misconduct of such executor, in respect to such notes and money.
    Under such circumstances, the executor is a trustee for the person delivering the notes, and he alone is responsible for a faithful application of the money collected.
    This is a Case in Chancery reserved in the County of Lake, and comes before this Court upon bill, answer, replication and testimony.
    The facts disclosed are these : June 30, 1829, B. F. Tracy, Charles M. Reed and Samuel Hayes became sureties for Andrew Arbuckle, on a note, in the sum of $559.11, and on the 25th April, 1833, they also became his sureties on another note in the sum of $689.29, on both of which notes there are now judgments against said Tracy’s estate. Arbuckle’s estate has paid about $700 on said notes, leaving from $1,000 to'$2,000 now due. Tracy died January 5, 1834, and by his last will and testament appointed V. J. Card his executor, expressing the wish that he “ should take the whole management of settling his affairs and estate,” and giving him “ full power to settle each and every demand in Jaw and equity.” Card accepted the trust, gave bonds, and acted as executor until April or July, 1840, when, his account having been filed and approved, he resigned, and respondents, Foote and Russell, were appointed administrators de. bonis non. After said notes became due, and before suit upon them, to wit, April 9, 1835, Arbuckle, whether at the instance of Card or of his own mere motion does not appear, placed in Card’s hands sundry notes amounting to the sum of $396.08, and took from him a receipt, as follows: “ Received of Andrew Arbuckle the notes, ‘ of which the foregoing is a list, as collateral security to indem- ‘ nify me as executor of the last will and testament of Benja- ‘ min F. Tracy, deceased, against the payment of two certain ‘ notes,” describing them, and adding: “ Now, if the said ‘ Arbuckle shall save harmless the estate of the said Tracy from ‘ the payment of the notes specified in the receipt, and so 1 signed by the said Tracy and others, as aforesaid, then I am ‘ to account to the said Arbuckle for the notes received of said ‘ Arbuckle, ás per the foregoing list. Dated April 9th, 1835.” Signed “ Vavnum J. Card, Exr. of Benj. F. Tracy.”
    Of these notes, Card collected part, using his name as executor, and, by reasonable diligence, might have collected most of the balance; but no part of said notes or of the money collected thereupon ever came to the use of Tracy’s estate, or was applied for its benefit, or in any way intermingled with its assets. Card’s account, filed, showed him largely indebted to Tracy’s estate, but embraced none of the collections from these notes. Card died intestate, September 1, 1840, and Backus is his administrator. Tracy’s estate is solvent, Arbuckle’s probably so, and Card’s utterly insolvent.
    The object of the bill is to subject the estate of Tracy to the payment of the money collected by Card on the notes placed in his hands by Arbuckle.
    
      Perkins &/■ Osborn, for Complainants.
    Card, the executor of Tracy, in procuring and- receiving the notes of Arbuckle to indemnify the estate, was acting within the scope of his authority, as executor, and in the faithful performance of his duty. It was his duty to protect the estate from loss, and, if possible, procure an indemnity; Off. of Ex. 171, note 1, It would have been his duty, if necessary, to have filed a bill, in chancery for that purpose, and he might as well receive the indemnity without suit as with. Stump v. Rogers, 1 Ohio Rep. 225; 1 Law Lib. Prin. & Sur. sec. 245.
    An executor has large discretionary duties. He may exchange securities; he may continue the business of the testatorj and . do'many other acts for the benefit of the . estate. Ex. .116; Toller’s -' Ex. 164;. Off. of Ex. 174,187; Williams on Éx. 1177. ' ... " '
    . An executor is regarded as the agent and trustee of the estate, and, when- acting within the limit of his- powers, the estate' is bound for whatever he does. Within this limit he received these notes, arid, consequently, and' especially, as the estate of Tracy has never paid any thing for Arbuckle, it is bound to refund the amount with interest.- . Tanksley v. Anderson, 4-Dessau. 44 ; 2 Bar. & Har.' Dig. 396. See, also, Tousant v. Martinant, 2 Tenn. Rep. 160, and Crawley's Assignee v. Dunlap et ah, 7 Tenn. Rep. 565. . ■
    
      H. Footer for Defendants.
    The notes were not placed in Card’s hands on any contract therefor, express or implied, ‘ between Tracy and Arbuckle. Had Tracy contracted with Arbuckle for the. notes afterwards delivered; as collateral security against his becoming' surety,- it would have placed the matter on entirety' different ground. But Card acted on his own responsibility. ■ His naming himself as executor, does not - change the character of the transaction, McCoy v.' Gilmore, 7 Ohio Rep. 268, part I.;' Waldsmith v. Waldsmith, 2 Ohio Rep.. 156.
    It is not competént for Card, as executor, of Tracy, to originate liabilities or make contracts to bind the estate, under pretence of taking security against a contingent liability: ' Forster v. Fuller, 6 Mass. Rep. 58; Thatcher v. Dinsmore, 5 Mass. Rep. 299. ' ,
    >It .was no part of his duty to receive the notes of Arbuckle. It was not settling up the estate. It was not getting rid of liability, but prolonging it. Swan’s Stat. 877.
    Under the. arrangement made between Card and Arbuckle, Card, became the agent and trustee of Arbuckle. He was trusted by Arbuckle in a matter beyond the sphere of his official duties, and is, therefore, only responsible to Arbuckle in his individual capacity.
   Read, J.

Tracy was security for Arbuclde. It was the duty of Arbuckle to discharge the original debt. Tracy was liable only collaterally. Arbuckle, on the decease of Tracy, delivered over to Card, his executor, the note in question, as indemnity or collateral security. When collected, the money did not belong to Tracy’s estate, but was to be applied to discharge the debt of Arbuckle’s estate. Neither the note nor the money collected belonged to Tracy’s estate, but was held in trust to be applied to the benefit of Arbuckle’s estate. Card was a trustee or agent for Arbuckle, and was to account to Arbuckle. Hence, if he violates.his trust or'duty as agent, the loss must fall upon Arbuckle. It would be a novel principle, indeed, to permit Arbuckle to constitute Card his agent, to do exactly what in law he was bound to do, and then hold Tracy’s estate bound for the faithful performance of the trust by Card. If Card had collected any money, and applied it to the benefit of Tracy’s estate, to that extent the estate would be liable; but this is not pretended.

Bill Dismissed.  