
    GENERAL COURT,
    OCTOBER TERM, 1793.
    The State, at the instance and for the use of Susanna Gardiner Key, against Jeremiah Jordan.
    THIS was an action of debt on a testamentary, bond, given on the estate of Philip Key, dated the 22d of September, 1764, executed by Richard W,. Edmund and T'ho-
      
      mas Key, (the executors,) with William and Jeremiah Jordan, their securities.
    The defendant pleaded special and general performance. The plaintiff, in his replications, assigned for breaches, 1st The non-payment of a legacy ; 2d. The non-payment of a debt due by' the testator to the plaintiff. To these replications. the defendant rejoined that the executors were appointed guardians to the legatee. The plaintiff demurred generally to the rejoinders. (For the replications and rejoinders at length, see 2 Harris’s Entries, 326. and 329.)
    In this case, Philip Key devised certain legacies to his grandchildren, of whom the plaintiff, Susanna G. Key, was one, and gave these legacies on condition that his executors should be guardians, and have the care of the persons and education of the legatees, and the management of their estates.
    It was agreed by the counsel, that the intention of the pleadings and demurrers in this cause was singly" to have the opinion of the court, whether Susanna Gardiner Key had remedy on the testamentary bond against the securities, to compel payment to her of the share of the personal estate of Philip Key, devised to her under the conditions specified in the will; or whether the said conditions exonerated the testamentary securities altogether as to her legacy ?
    
      Argument on the part of the plaintiff.
    
    
      Question. Are the securities on the testamentary bond liable, if the executors never made any account of their testator’s estate, distribution thereof, or ascertained the balance even which the residuary legatees are entitled to receive ?
    It is contended on the part of the plaintiff, that though the securities on the testamentary bond, might not be liable for legacies committed to the care of a testamentary guardian, when those legacies were once in the hands of the guardian; yet on this occasion they are liable, since the executor never ascertained what the residue of the estate was; never completed his administration, or did any act to show the legatees what they were entitled to receive; that his administration was closed, and that he considered the estate then in his hands as their guardian.
    The commissary might have called for an account, and if it had been rendered, and the legatees could have known what they were to receive, though the executors would have been obliged to pay with one hand, as executors, and receive with the other as guardians, yet such act was necessary to close their administration and discharge their securities, otherwise the securities for administration of the estate, though their bond specifies the executors’ duty, would not be answerable to the legatees even for a moment.
    The duty of executor was one thing, that of guardian another. If they had been different persons, no doubt could have arisen that the executor and his securities were bound to make an account of the estate, and show what the legatees were entitled to receive. Had it been done in this case, the legatees would have known to what security alone they could resort, and have acted, perhaps, differently from what they did. The condition of the bond specifies the duty, and it was apprehended that could not be dispensed with by the executor.
   The Court

gave judgment on the demurrer to the rejoinder, respecting the legacy, or share of the personal estate, for the defendant; and on the demurrer to the rejoinder to the first breach in the 2d replication, respecting the debt, the court gave judgment for the plaintiff, and also gave judgment for the defendant on the demurrer to the rejoinder to the last breach in the second replication respecting the legacy.  