
    Edward G. Loring, Judge of Probate vs. Thomas B. Cunningham & others.
    A testator, before his decease, gave a bond to convey real estate, and took from the obligee an obligation to take the estate and pay the purchase money at a time stipulated; the testator executed and acknowledged a deed, but died before the time of payment arrived; when the day of payment arrived, the executor received the purchase money and delivered the deed ; such money having been received by the executor on a personal obligation belonging to the estate, he is bound to account for the same.
    Salary voted to a person after his decease, and paid to his executor, is assets of the estate, to be accounted for by the executor.
    This was an action on a probate bond, against Cunningham, as executor of Samuel H. Hewes, and the sureties in the bond. The executor and one of the sureties were defaulted. The other surety denied the execution of the bond, and an issue thereon was submitted to the jury and found for the plaintiff.
    The case was then submitted to a master, to ascertain the amount of the estate of Hewes, which had come to the hands of Cunningham, as executor, and for which he had not accounted. The master made a report, embracing several items, but only two items are contested. The first item is a sum of $5,000, the facts in regard to which sufficiently appear in the opinion of the court.
    The second item is a sum of $250, with regard to which the master reports as follows : —
    “ On behalf of the plaintiff, Mr. James C. Dunn, treasurer of the city of Boston, testified that, on the seventh day of July, 1845, he paid to the said Thomas B. Cunningham two hundred and fifty dollars, belonging to the estate of the said Samuel H. Hewes. He also exhibited a receipt of the said Cunningham for the said sum, signed with his name, but without the addition of ‘ executor.’ He stated that he presumed the payment to have been for one quarter’s salary, due to the said Hewes as superintendent of burial grounds. The payment was made in the usual form, on a warrant or order from the city auditor, Mr. Elisha Copeland.
    
      “ Mr. Copeland testified, that he gave the said warrant or order, and exhibited a record of the vote of the city council, authorizing the said payment, and the receipt of the said Cun ningham as executor.”
    
      W. Dehon, for the plaintiff,
    cited Wheelwright v. Wheelwright, 2 Mass. 447; Foster v. Mcmsfield, 3 Met. 412.
    
      H. L. Hazelton, for one of the defendants,
    objected to the allowance of both items; to the second, because it was a gratuity to the estate, and not a debt due to or assets belonging to the estate, for which the sureties should be liable.
   Fletchee, J.

The first item is a sum of $5,000, the facts in regard to which are briefly these.

Mr. Hewes, in his lifetime, made a contract with one Nathan Wheeler, to sell him a certain real estate in Boston. Mr. Hewes made a bond to convey; and Wheeler gave an obligation to take the estate and pay the purchase money at a time stipulated. Mr. Hewes also made a deed of the estate to Wheeler, which was duly acknowledged.

Before the time for the payment of the money, Mr. Hewes deceased. When the time arrived, Mr. Wheeler paid to Cunningham, the executor, the sum of $5,000, according to his obligation, and Cunningham delivered to him the deed which had been duly executed and acknowledged by Hewes; Wheeler has since sold the estate.

Against charging the executor with this sum, it was argued, that the deed of Hewes, thus delivered after his decease, passed no title, and that the land still belonged to the estate, but that the money did not. On the other side, it .was insisted that the deed, when made, was delivered to Cunningham as an escrow, and, when delivered after the death of Hewes, on the payment of the money, took effect from the time of the first delivery.

There was some evidence tending to show such a delivery as an escrow, and perhaps the circumstances might warrant such an inference ; but, without settling that point fully, the court think that, as the executor received the money on a personal obligation belonging to the estate, he is bound to account for the money to the estate.

Now, as to the salary paid by the city. It was said, in behalf of the executor, that this sum was merely a gratuity and was not estate left by the deceased. But it was paid to the executor as the representative of Mr. Hewes, and to be held and accounted for by him, as belonging to the estate of Mr. Hewes. There was, surely, no intention to give it to the executor in his own right, and for his own personal benefit.

Report of the master accepted and affirmed, cmd judgment accordingly.  