
    Maria A. Paff v. Franklin S. Kinney.
    The plaintiff, an executrix, and the defendant, an executor of the same estate, had a final accounting before the surrogate of New York. He made a decree thereon, ascertaining and declaring the amount of assets in their hands, the whole amount due, and the sum payable to each creditor out of the assets, that the assets be placed in defendant’s hands, and that he personally pay the sum payable to each creditor.
    
      Held, that the liability of the defendant thereupon became personal, and the moneys his individual property, unless some special equity be shown to follow and reach the fund.
    All the creditors, except one to whom $1596 51 was decreed to he paid, having been paid their proportion in full, and the latter having been equitably satisfied, also his claim from some source not stated, but otherwise than by the payment of the $1596 61, released his claim on the estate so far as regarded this sum, and the plaintiff, as creditor of the estate, then brought an action to compel the defendant to account anew for the $1596 51,. and to pay out of the same the balance due to plaintiff as such creditor.
    
      Held, that the action would not lie on the facts stated.
    
      
      Held, also, that if facts existed making the defendant liable to account anew at the suit of a creditor, who was a party to the final accounting, the action should be brought in behalf of all the unsatisfied creditors, or that they should be made parties.
    (Before Saotford, Campbell, & Bosworth; J. J.)
    January 7th;
    Feb. 28th, 1852.
    . This was an appeal from, a judgment rendered at a special term in favor of the plaintiff, upon a demurrer to the complaint.
    . As the questions to be determined arose wholly upon the pleadings, it is deemed necessary to state them in extemo.
    
    The complaint is as follows :
    The complaint of the above named plaintiff against the above named defendant, in above entitled action, respectfully shows to this honorable court,
    That the father of the said plaintiff, Joseph De Lacroix, late of the city of New York, deceased, left a last will and testament, duly executed, signed, and witnessed, bearing date on or about the twentieth day of December, 1837, wherein and whereby among other things, he first directs his executors therein appointed, to pay his just debts and funeral expenses as soon as the same could conveniently be done after his decease, and authorizes and directs his executors to sell his real estate at public auction or private sale, and make, execute, and deliver conveyances for the same. To give credit at their discretion for the purchase money, the payment whereof shall be secured by bond and mortgage upon the property sold, provided said sale shall not be within two years after his disease, except with the consent of his son Clement Joseph De Lacroix, and his daughter Maria A. Paff and Sophia Davis, and. out of the proceeds of said. sale he further directs his executors to pay certain specific and general legacies as by the said last will and testament, to which reference is hereby made, will more fully and at large*appear. That in and by a codicil to the said last will and testament, also duly signed, executed, and witnessed, and bearing date on or about the twenty-seventh day of June, 1838, the said testator duly nominated and appointed the said plaintiff, and the said defendant, and Joseph De Lacroix, executrix and executors of the said last will and testament.
    That on or about the twenty second day of February, 1839, the said Joseph De Lacroix, testator as aforesaid, departed this life, leaving the said last will and testament, unrevoked and in full force and effect. That the said last will and testament was duly proved before the surrogate of the county of New York, on or about the last of March, 1839, and the said plaintiff and the said defendant, and the said Joseph De Lacroix, so appointed executors by said last will and testament, duly qualified and took upon themselves the office and duties of executrix and executors thereof.
    And the said plaintiff further shows, that the estate of the said testator, Joseph De Lacroix, deceased, was insolvent and not able to pay the debts it owed. That such proceedings were had thereon, that on a final accounting before the surrogate of the county of New. York, it was found by an order bearing date March 22d, 1842, that there was in the hands of the said plaintiff, the executrix, assets belonging to said estate, amounting to the sum of thirteen hundred and sixty-five dollars and forty-one cents, and in the hands of the said defendant, the executor, assets amounting to the sum of seven hundred and' sixty-eight dollars and sixty-five cents.
    That at the date of the said order, there was due to the following creditors of the said estate of said Joseph De Lacroix, the following amounts, to wit: to the said Maria A. Paff (this plaintiff), the sum of fifteen hundred and fifty-nine T\\ dollars ; to Adolphus Schwanda, the sum of seven hundred and thirty-two TVo dollars ; to the mayor, aldermen, and commonalty of the city of New York, thirteen thousand nine hundred T/o dollars ; to Warren & Kursted, one hundred and thirty-three dollars ; and to Dr. Cyrus Perkins, fifteen dollars. That the assets of said estate were insufficient to pay the said claims in full, and that they were all claims to be paid in the same degree. That on a pro rata distribution of said assets, directed by said order, there was to be paid to the said plaintiff the sum of one hundred and eighty rrf0 dollars ; and to the other creditors in like proportion to their claim. That the sum of fifteen hundred and ninety-six T\\ dollars was directed to be paid to the said the mayor, aldermen, and commonalty of the city of New York, as their portion of said assets. That said order contained the further provision : “ And as it is advisable that the said sums be all paid out by one person, it is further ordered and decreed, that the said Maria A. Paff, executrix as aforesaid, after retaining the amount due to her, and paying the said Adolphus Schwanda the said sum directed to be paid him, as aforesaid, pay the balance then in her hands, to wit: the sum of eleven hundred Vo» dollars to her said co-executor, Franklin S. Kinney, with the further direction that the said Kinney pay the amounts therein above set forth to the other of the said creditors respectively.”
    And the said plaintiff further shows that, in accordance with the said direction so contained in said order, she did pay the said sum of eleven hundred TW dollars to the said Franklin S. Kinney, defendant herein. That the said defendant never paid said amount so directed to be paid to the said the mayor, aldermen, and commonalty of the city of New York. That the said corporation of the city of New York having become equitably satisfied to the whole, amount of 'their said claim from another source, concluded to release their said demand against said estate, so far as regarded the said fund of fifteen hundred and ninety-six fVV set apart to their use, as aforesaid, and they thereupon executed to the said plaintiff on or about the twenty-first day of July, 1848, a document or paper to that effect, whereof the said defendant had due notice. That thereupon the said fund became assets anew for the creditors of said estate, save and except the said corporation who claim and have no interest therein. That the said plaintiff is now the sole creditor of said estate who has a claim upon said assets in the hands of the said defendant. That the said plaintiff has made demand upon said defendant for said assets, .but that the said defendant has wholly neglected and refused to account for said assets, and still neglects and refuses so to do, or to apply the said assets or such part thereof as may be necessary to the payment of said claim. That he has applied said assets to his own use, and this plaintiff believes intends to wholly prevent the same from being applied to any legitimate object connected with said estate, and to keep the same entirely to himself in direct violation of the duties of his office as executor, and of honesty and fair dealing among men.
    The said plaintiff therefore prays, that the said defendant may be required to account for the said fund under the direction of this court, upon such terms, as to interest, as may be just and proper, under the circumstances of the case. That the said plaintiff may be paid her said claim against said estate therefrom, and may have such other and such further relief in the premises, as to this honorable court shall seem meet and proper.
    The demurrer specified the following as the causes of demurrer.
    1st. That the facts stated in said complaint do not show any right or title in the said plaintiff to demand or recover from the defendant the sum of money therein claimed, nor any part thereof. It does not show any indebtedness on the part of the defendant to the plaintiff.
    2d. That from the statement in the complaint, if the facts therein shall be deemed in law sufficient to establish any cause of action on the part of the plaintiff, it appears that such right of action accrued more than six years before the commencement of this action, and that any demand thereupon is barred by the statute of limitations, in such case made and provided.
    3d. That it also appears in like manner, from said complaint, that more than ten years have elapsed before the commencement of this suit, since the cause of action therein stated, accrued, and that it does not appear that such cause of action accrued within ten years from the commencement of this suit, and that the prosecution thereof, is barred by lapse of time and the limitations prescribed by law therefor.
    The cause was first argued before Duer, J., át a special term, in November, 1851. He overruled the demurrer, and stated the following as the grounds of' his decision.
    1st. That the release executed by the corporation must be construed as accruing to the benefit of the estate, which the defendant, as an executor, &c., was bound to administer, and that its effect was not merely to release the defendant from his personal liability to the corporation, but to restore to the estate the entire fund which had been placed in his hands, for the purpose of satisfying, rateably, the debt released.
    2d. That from the time of the execution of the release, the fund so restored to the estate must be construed as new assets in the hands of the defendant, as executor, applicable to the payment of debts and legacies in the same manner, and to the same extent, as if it had actually been then paid to him in cash, for that purpose.
    3d. That the title of plaintiff, as sole creditor, to have the assets in the hands of the defendant as co-executor, applied to the satisfaction of the residue of her debt, as established by the decree of the surrogate, is sufficiently set forth in the complaint.
    4th. That, if the statute of limitations is applicable at all tó the demand of the plaintiff, it is not so manifestly a bar, upon the facts set forth in the complaint, as to authorize the defendant to raise the objection upon a demurrer.
    
      E. Sandford, for the defendant, the appellant
    argued, that the judgment at special term ought to be reversed, and judgment on the demurrer be given for the defendant, upon the following grounds :—
    I. The facts stated in the complaint do not show any cause of action against the defendant. The suit is brought by the plaintiff, claiming to be a creditor of the estate of Joseph Delacroix, deceased, by virtue of a decree of the surrogate of New York, made upon a final settlement of the accounts of the executrix and executor of said estate, by which decree the extent of the claim of the plaintiff against the estate, was adjudged to be the sum of $1559 60, and the extent of the right of the plaintiff by virtue of said claim in the assets of the deceased, then in the hands of, or accounted for by the executrix and executor, was $180 35 which the complaint shows was then paid to the plaintiff. This was the extent of the right of the plaintiff as a creditor of the estate in the assets then realized, and by its judgment the executrix and executor were discharged from all further liability to pay any portion of the residue, unless assets not then known or discovered, should be subsequently discovered and come to the hands of the executrix and executor, or one of them. (2d R. S. 93, 94, sections 60, 63, 65, 70, 71.)
    II. The complaint does not show that any assets have been received by the defendant as executor, which were not embraced in the said final accounting, and were not then specifically adjudged and decreed to be paid to creditors of said estate other than the plaintiff. By the decree set forth in the complaint, all the estate which then remained to be paid or distributed, was adjudged to be payable to the creditors, and distribution was made thereby of such distributable fund among the persons adjudged to be entitled to it, and the sum to be paid to each person was thereby determined, pursuant, to the 71st section of the statute (2 R. S. 95 and 71). From the moment this decree was pronounced, the judgment of the surrogate became obligatory upon the person and property of the defendant individually. His trust ended as to all property before that time received, or in virtue of that decree received by him. The creditors of the estate had no lien upon it. The surrogate had no control over it. He could neither interfere, with the defendant in any use he might see fit to make of it, nor prevent him from making any disposition of it, nor remove him from office, and compel its delivery, or any further or other account of it to any administrator. The remedy, and the only remedy thereafter, is upon the decree of the surrogate for the payment of the money thereby adjudged. (Laws of 1837, 535, sections 63, 64, 65, 66, 67; Laws of 1844, p. 91, sec. 2; 1st Denio 407, 410, 13 Butler v. Miller; 2 J. R. 214, 220. Tom v. Goodrich; 3 J. C. 180. Clement v. Brush.)
    
    The averment is not accurate in point of law, that upon the failure of any creditor to compel the payment of any sum adjudged upon a final accounting to be paid by an executor to him, that the personal debt of the executor to the creditor, becomes an asset belonging to the estate, to be again accounted for by the executor to other creditors. It became a personal debt against the individual who had held the office of executor, because he had received so much of assets belonging to the estate, which on an accounting the surrogate had adjudged to belong to, and to be paid to a particular creditor ; but his debt thus established can never be an asset, nor can he ever be made liable further or otherwise than is adjudged by the surrogate's decree, unless he be shown to have received after the accounting, other property of the estate not contained in the accounting, nor included in the decree.
    
    While the decree stand's, the parties in whose favor it is made respectively, or those claiming immediately under them, and in virtue of the rights adjudged to them, alone can enforce it. Its execution or non-execution rests with them alone.
    If one of these creditors forbear to sue for, or to receive the amount adjudged to be paid to him within the time limited by law for that purpose, and then sue and the executor plead the statute as a bar, no other creditor can, in any manner, sue for or receive any thing from the executor on account of the debt. If the creditor delay proceedings until any proceeding upon the decree has become barred by lapse of time, and then receive, not from, the estate nor from, the plaintiff, but from some undiscovered source, what satisfies them in point of conscience, and thereupon released their claim; the operation of such a release was simply to extinguish a personal demand founded upon the Surrogate’s decree against the defendant, AND not to CEBATE a liability to pay such extinguished demand on the part of the defendant to the plaintiff.
    
    The confusion of ideas which evidently exists as to the effect of this transaction, arises from not discriminating between the existence of the assets, which were the foundation of the judgment of the surrogate, and the character of that decree which extinguished the character of those assets, and the office of executor, so far as the assets accounted for were concerned, and, vested the property in the executor, and substituted the obligation which the decree imposed upon him personally, for all other rights and interests of the creditors of the estate so far as then discovered.
    To conclude upon this point, we submit, First, that the decree of the surrogate extinguished the character of assets, which, before it was pronounced, appertained to the funds in hand, and then accounted for as belonging to the estate, and substituted the responsibility in person and property of the defendant, to be pursued according to law under that decree, as the sole existing and thereafter continuing claim of the creditors. Secondly, That the release of the claim of the corporation of New York, to the sum adjudged to be paid to them, extinguished all right or title to it. And no case is stated by means of which any court can either set aside the release, "or keep the decree in existence, in spite of its legal effect,—nor if either could be done, is any case stated by which the plaintiff can be subrogated to the rights so adjudged to the corporation.
    • III. If any claim existed, it is barred by lapse of time. The statute limiting actions, is founded upon the presumption that the demand has been paid. This defence is no longer looked upon with disfavor,—it is a “statute of repose.” (Marcy, J., in Purdy v. Austin, 3d Wend. R. 189.) In this case, an action at law might have been maintained upon the surrogate’s decree. (1 Bradford’s Rep. 4, Paff v. Kinney; 1 Barb. Ch. R. 456, McCarler v. Camel.)
    
    Before the corporation of New York released their claim against the defendant, their right of action against him was barred by lapse of time ; until such release, the right of action was exclusively in them. By virtue of such release alone, if at all, can any right arise which can be asserted by the plaintiff, as it enures to the plaintiff or springs in her favor by the action of the corporation. She takes it cum onere. She can acquire no greater right of action than they had. Claiming under them or in virtue of their act, she is as much bound as they were by their previous omissions to act. She is not within any exception in the statute. The cause of action arose on the 22d March, 1842 ; it was not sued until after March, 1851.
    The suit, appearing on the face of the complaint, not to have been brought within the time limited by law, advantage may be taken of it by demurrer. (24 Wend. 587, Humbert v. Trinity Church; 4 Paige, 178, Bogardus v. Trinity Church.)
    
    
      D. Hawley and H. W. Warner, for the plaintiff, insisted that the judgment ought to be affirmed, and argued as follows :—
    I. The surrogate’s decree of 22d day of March, 1842, did not so appropriate the money directed to be paid to the corporation of the city of New York, but that the said money remained in the defendant’s hands as executor. (Paff v. Kinney, 1 Brad. Sur. Rep. p. 9.)
    (1.) The express direction of the said decree shows the defendant was to continue to hold the said money as executor, since he was not to be discharged from his executorship until the payment over of the money. (Ib. pp. 2 and 3.)
    (2.) It was not competent for the defendant, having once acted as executor, to act with regard to the estate in any other capacity. (2 Williams on Executors, p. 1558; Graham v. Keble, 2 Dow’s P. C. p. 17.)
    (3.) The defendant could not hold the said money in his hands as his own individually, so as to make profit from his trust.
    II. The said money remaining in the defendant’s hands as executor, remained as assets belonging to the estate of Joseph Delacroix, deceased, devoted to the special purpose of paying the claim of the said corporation against the said estate,,and on the discharge of the said corporation’s claim, became general assets anew belonging to the said estate.
    III. The relation of the plaintiff and defendant was such that the statute of limitations could not attach as between them against the plaintiff’s rights as a creditor.
    (1.) As co-executors, the plaintiff and defendant were joint tenants, and possession of one was possession of both, until some act was done showing the severance of the joint tenancy. No such act is shown by the complaint. Joint tenancy applies to personal property. (2 Kent’s Com., p. 350.)
    (2.) The plaintiff could not sue the defendant at law, being his co-executor, so that there was not a concurrent remedy at law and in equity, and only the ten year equity statute of limitations (if any) could apply; and this action was commenced within ten years. (Kane v. Bloodgood, 7 J. C. R. 90; Humbert v. Rector, &c., of Trinity Church, 7 Paige, 195; 2 Rev. Stat. (3 ed.) p. 398, §§ 49 and 50; Smith v. Lawrence, 11 Paige’s Rep. p. 206.
    IY. At any rate, if the six years’ statute of limitations attach at all against the plaintiff, it could only do so from the time of the said discharge of the said corporation’s claim upon this money, which was within six years before the commencement of this action.
    (1.) By the discharge of said corporation, the fund set aside for them becoming general assets anew for the use of the said estate, must first be applied in the payment of the debts against said estate, the plaintiff’s debt being stated by the complaint and admitted by the demurrer to be the only one now existing.
    (2.) The statute of limitations only begins to run from the time the right of action accrues—some wrong done, or right withheld—and until the said discharge of the corporation’s claim, the plaintiff could not institute an action for the payment of her debt from the said fund. (Pothier, vol. 1, p. 462, part 3, ch. 8, art. 2, § 2; 3 Chitty’s Blackstone, p. 306, note; McBee v. Loftis, 1 Strolhart’s Eq. R. 90; 2 Rev. Stat. (3d ed.) p. 394, § 18.)
    (3.) The statute of limitations does not attach against the creditors of a decedent’s estate, as to after acquired or new assets, until said assets become applicable in the hands of the executor to the payment of debts. (Matoon v. Cole, 8 Ohio Rep. p. 250; Dexter v. Arnold, 3 Mason Rep. p. 284.)
    Y. The statute of limitations cannot be set up by the defendant against the plaintiff’s claim for an account, and the order appealed from, overruling the demurrer, must be affirmed with costs.
   By the Court.

Bosworth, J.

This is an appeal from a judgment at special term, overruling a demurrer to the complaint. The action was commenced on the 15th of February, 1851. The plaintiff sues as creditor of the estate of J. De Lacroix, deceased. The defendant is sued as an executor of said estate. The object of the action is to compel the defendant to account, as executor, for moneys for which he accounted in March, 1842, on a final accounting by him, then had as such executor. The theory of the action is, that certain of the moneys which the defendant then had as executor, for which he then accounted, and for which a decree was then made against him personally, in favor of the corporation of New York, became, on the 21st. of July, 1848, by reason of the facts stated in the complaint—new assets, or assets anew, in his hands, as executor, for which he is liable to account anew. The first objection specified in the demurrer is, that the complaint does not state facts sufficient to constitute a cause of action. I think that objection is well taken.

The complaint does not state by whom, or by whose property, the claim of the mayor, aldermen, and commonalty of New York, against the estate of the decedent, under and upon his order, was satisfied. It does not aver that any assets, other than those disposed of by the order of March 22,1842, were realized by either of the executors, or by the executrix. It, by implication, admits that every creditor was paid the sum adjudged by the recorder to be payable to him, except the city of New York, as nothing to the contrary is averred. It avers that the corporation of the city of New York, having become “ equitably satisfied to the whole amount of their said claim from another source, concluded to release their said demand against said estate, so far as regarded the said fund of fifteen hundred and ninety-six fVo dollars, set apart to their use as aforesaid, and they thereupon executed to the said plaintiff, on or about the 21st of July, 1848, a document, or paper, to that effect, whereof the said defendant had due notice.”

It does not aver that Kinney was not, or that the estate was, the meritorious cause or instance of producing such satisfaction. It avers an equitable satisfaction of the $1596 51 from another source than the moneys in Kinney’s hands as executor. It avers that Kinney never paid to the said corporation “ said amount so directed to be paid,” but does not aver that he never paid any part thereof, nor created or furnished that which constituted the equitable satisfaction. There is no averment, in terms or substance, that the corporation gratuitously relinquished to the estate its claim to the sum directed to be paid by Kinney. The plaintiff insists that the facts alleged in the complaint, as therein stated, conceding them to be true, operate to place Kinney in a position, on and from the 21st of July, 1848, which precludes him from denying that on that day he realized anew, in his capacity of executor, as assets belonging to the estate, the sum of $1596 51, although he, in fact, has not received or realized a dollar of money not embraced in or disposed of by the order made on the final accounting.

What was the position and liability of Kinney, and the right of each creditor at the time this order was entered ? The right of each creditor, and the extent of such right, in respect of the moneys then realized, -were absolutely and unalterably determined, provided the order was not appealed from in thé time specified by law. (2 R. S. p. 94, §§ 65, 67.)

Each creditor having a right either to a part of the fund, or to be paid anything on account of the existence of the fund, was paid the whole sum to which he was entitled, except the city of New York. Each creditor, except the latter, received actual and full payment. The order directed the plaintiff to pay to Kinney the moneys in her hands, forming part of the sum of $1596 51, and all of it except such part as he then held as executor, and directed that he should personally pay the corporation the sum of $1596 51. The payment by her to Kinney of the sum she was ordered to pay, terminated all liability on her part, and confined the rights and remedies of the corporation to proceedings to be taken against Kinney only. If the order was complied with by Mrs. Paff, and was not appealed from, it would certainly protect her against any and all proceedings against her in respect to such moneys.

Every creditor was paid his proportion of all the moneys embraced in the order, except the corporation of the city of New York. The amount adjudged payable to the latter was placed in Kinney’s hands as executor, and it was adjudged that he only, and personally, should pay to the corporation $1596 51. No other creditor had any interest, legal or equitable, in this fund, or in his obeying the order. The mqneys became the individual property of Kinney, as to all the world, except the corporation, and also as against the latter, unless on some special equity it might be proved against the fund while it existed in his hands in specie, and could be traced, to obtain payment by the application of the identical moneys received by him as such executor.

The defendant insists that the only remedy of the corporation, after the decree made on the final accounting, was an action on the decree, or the filing and docketing of a transcript of the decree, and the issuing of an execution thereon.

In Dubois v. Dubois, 6 Cowen, 494, the court held, that an action would lie on a surrogate’s order, directing one executor to pay to Ms co-executor, the amount of a legacy. The court said, “ But the surrogate, we must intend, had the proper evidence to justify a decree, whereby the defendant was to be made personally liable for a demand, which previously existed against him, in Ms representative capacity only. By the decree it became a personal matter. The judgment in this suit- cannot be of the goods of the testator, execution must go against the defendant personally, as for his private debt. I infer, therefore, that the character of the claim is changed by the decree, so that in prosecuting upon it, there can be no necessity to describe the defendant as executor.” In such a suit he may set off a demand due to him individually, from the plaintiff. (Id. p. 497.)

By session law of 1837, p. 535, § 63, 64, and 65, and of 1844, p. 91, § 2, provision is made for filing a transcript of a surrogate’s decree for the payment of money, by an executor, docketing it, making it a lien on his real estate, and for issuing an execution thereon, as upon a judgment, recovered in the court of common pleas of the county where the transcript is filed.

An execution on such a decree cannot direct goods and chattels, which were of the deceased, at the time of his death, and in the hands of the executor, to be seized by it. It can only be levied on the individual property of the executor, against whom the decree is made.

(Davies v. Skidmore, 5 Hill, 501.)

There is no pretence that Kinney is, or has been personally irresponsible, and no facts are stated in the complaint, to now exist, or to have at any time existed, which would authorize proceedings by attachment against, or to imprison Kinney, or to reach the fund itself, even it it could be traced and found in his hands, and the claim of the corporation yet existed in full force and effect, unimpaired by lapse of time, or actual satisfaction.

(The People v. Gould and others, 4 Denio, 551; Hosack and executors, v. Rogers et al., 11 Paige, 603.)

The complaint does not aver that Kinney has been released from the decree against him personally. The averment is not that the decree was released, but that the “ said demand against said estate, so far as regarded the said fund of $1596 51, set apart to their use,” has been released. The assumption in the complaint is, that moneys amounting to the specific sum of $1596 51, were separated and set apart, on the 22d of March, 1842, to the use of the corporation ; that from that time to July 21, 1848, that fund continued to exist, and that Kinney continued to hold it as executor, in trust for the corporation, and, to also hold it as assets in some such sense, that when the corporation released its claim on the fund, then and from the moment of such release, Kinney was chargeable as executor with the receipt of new assets, to the amount of the fund, in consequence of such release.

On this theory, the effect of the surrogate’s decree, of March 22,1842, was to place in Kinney’s hands, on special deposit, assets amounting to $1596 51, to be held as assets, but for the sole and separate use of the corporation, and also to adjudge that he should personally pay that sum to the corporation, and that when the corporation, without actual payment, but on being equitably satisfied from some source, not disclosed, released to “ Maria Paff, a creditor of the estate,” its demand against the estate so far as the fund was concerned, Kinney could be again called upon to account for the same moneys as new assets, notwithstanding the judgment against him remained unsatisfied in fact, and in no way released or discharged.

But the decree is not such in terms or in its legal effect. The moneys were not directed to be paid over to him, to be held by him as a trust fund ; they were to be paid over to him as a consideration and ground of decreeing that he should personally pay to the corporation, the sum which had been found to be equitably due to it. When the decree was entered, every creditor’s right in or to these moneys, or, in respect of them, was settled and determined. By the force and effect of that decree, each creditor, except the corporation of New York, was decreed to have no right in or to them, or in respect of them. The plaintiff was exonerated from all liability in respect to them, both personally and as executor, except to pay to the defendant a specified sum. She paid that, and then her duties and liabilities, personally, and as executrix, as to those moneys were ended. The defendant was charged personally with the payment to the corporation, of the amount found payable to the latter. His liability then became personal, and the moneys were his own. A decree was pronounced against him, which could be made a lien on his real estate, as the will of the corporation, and could be collected by execution on the decree out of his real and personal property. The corporation could not proceed against him otherwise than by proceedings based upon the decree for the purpose of enforcing it. That decree is subsisting, at all events the plaintiff is not the assignee of it, nor claiming as assignee of it. The corporation by reason of releasing their claim against the estate, so far as regards the alleged fund, could not confer on the plaintiff other rights than it had itself, at the time. All the corporation had, at the time of releasing, was a decree against Kinney, personally, which was outlawed. It is not alleged that this decree was released. If it had been, the liability of Kinney upon it, if any there existed, could not be transformed into a liability to account as executor, for the assets, as new assets then realized, which had been accounted for over six years previous, on a final accounting in respect to them, and on which accounting a judgment had been recovered against him personally, for the amount of them.

It is true that, in equity, the assets are treated as the debtor, or, in other words, as a trust fund, to be administered by the executor, for the benefit, and according to the rights of all persons interested in it. (1 Story’s Equity, 543, ,§ 579.) But since the adoption of the revised statutes, there is no such thing known, as the assets in the hands of an executor being, at law, the debtor, or a creditor’s having a lien on them, but the person of the executor in respect to the assets, which he has in his hands, is treated as the debtor. (2 R. S. 88, § 32; 9 Wend. 448, 487; 18 Wend. 666.) No execution “ de bonis testatoris” can now be issued. For injuries to personal property, which was of the deceased, done after his death, or for a subsequent conversion of it, the executor may sue in his own name, without describing himself as executor, he being regarded, at law, the real owner. (5 Cowen, 267, Baker v. Baker; 13 Wend. 591, Holbroke v. White; 4 Hill, 57, Patchin v. Patchen.)

But if a state of facts appeared by the complaint to have existed at, or prior to, the time of the final accounting, which would have authorized proceedings by the corporation, to reach and obtain a transfer of specific moneys,- to the amount of $1596 51; yet, as it elected to take a judgment, or -decree, on such accounting, against the executor, personally, for the amount, such election and decree are a bar to all proceedings to reach the moneys, and from the entry of the decree, they became the property of Kinney, as well against creditors, as against third persons. Every contingent equitable right to the assets, was merged in the personal judgment against the executor. (3d Cowen & Hill, p. 823, and cases there cited.)

If this action can be maintained upon the facts stated in the complaint, it is difficult to say that one would not lie at the suit of a creditor, on the allegation that Kinney had not paid any part of the moneys to the corporation; that its right to take proceedings to reach them, was bound by lapse of time ; and that Kinney had not, since they were set apart to the use of the corporation, made any promise to pay, or acknowledged any liability to pay them.

It is unnecessary to discuss, and it is not intended to express any opinion, what would be the rights of the estate, or of its creditors, if the complaint had stated facts, which showed that the estate was the source from which equitable satisfaction had been derived, and in consideration of that, and for the benefit of the estate, the corporation had released Kinney from the decree against him, and its claim against the estate, pro tanto, by a release to the plaintiff and defendant, as executrix and executor : such is not the case made by the complaint.

The complaint shows that on thé final accounting, several persons were found to be creditors of the estate, neither of whom was paid more than his proportionate part of his debt: it is not averred that either of them has since released his debt, or been paid in full. Unless they have released, or been paid, they should be made parties. The allegation that the plaintiff is now the sole creditor of said estate, who has a claim upon said assets in the hands of the said defendant, is not, in substance or effect, an averment, that she is the only creditor of the estate, and that all of the others have discharged the estate from all claims and demands. If a case can be made, giving the plaintiff a right as creditor, to call the defendant to account as executor, a suit for that purpose should be brought in behalf of all the creditors, or they should be made parties to it.

It seems to be unnecessary to express any opinion as to the effect of the statute of limitations upon the demand made against the defendant, or upon the claim of the plaintiff, as creditor. If, upon the facts stated, the defendant cannot be said to have realized new assets, or assets anew, on the 21st of July, 1848, then the facts stated are not sufficient to constitute a cause of action. Nothing has come to the defendant’s hands which was not accounted for in March, 1842. He is not to be again required to account for the same moneys by any creditor who was a party to that accounting.

The order overruling the demurrer should be reversed, and judgment given for the defendant on the demurrer, with liberty to the plaintiff to amend her complaint within twenty days as she may be advised, upon payment of the costs of the proceedings on the demurrer, and of this appeal.  