
    Albert G. Mathews, Administrator de bonis non, with Will annexed, of Benjamin H. Johnson, deceased, v. William M. Meek et al.
    1. As a general rule, the powers of an executor are co-extensive with all the trusts devolved upon him by the will, and all acts done by him in executing such trusts will be regarded as done in his capacity as executor, unless it plainly appears, from the whole will, that the testator intended to create a special trust to he managed by the person named as executor in the capacity of special trustee.
    2. J. bequeathed to his executors, in trust, $10,000, to be put at interest by them for six years, and directed that at the expiration of that period the principal sum he appropriated by the “ executors ” to the objects of the trust, and named P. and J. as the executors of the will. P. having, declined the trust, J. alone qualified as executor, and managed the fund for the period named, and then paid the principal sum to a contractor for the purpose Of applying and appropriating it as directed by the will, took a bond for the performance of the contract, and then resigned. Held, that his successor with the will annexed succeeded to-the management of the trust, and the right to sue upon the bond for breaches thereof.
    S. In an action against principal and sureties on a bond executed to an. . executor, who, as such executor at the time, paid the full consideration to the principal in money, an answer by the sureties that they entered into the bond for no other consideration than the promise and agreement of the executor to release them from a debt due to him in his own right, and that said promise to them has been broken to their injury, whereby the consideration upon which they entered into said bond has wholly failed, is had on general demurrer.
    Error to the Court of Common Pleas of Highland-County. Reserved in the District Court.
    The following items are contained in the last will and testament of Benjamin H. Johnson, deceased:
    “23d. I give and bequeath to my executors in trust, for the uses and purposes hereinafter named, ten thousand dollars, which sum I direct my executors to put at interest, and, at the expiration of six years from the date of my death, to pay the same principal sum of ten thousand dollars to a college for completing the education of young men,, located in Hillsboro, if there be any such college at the expiration of that period established and in successful operation in said town; and such principal, sum of ten thousand, dollars, if the contingency above contemplated occurs, to be paid, at the expiration of said period of six years from my death, to said college corporation, for the endowment of such professorship or professorships in said institution as my executors, or the survivor of them, may designate. If the condition fails upon which this legacy is given, then, and in that case, I direct my executors to appropriate said principal sum of $10,000 to the erection of a masonic hall in the town of Hillsboro, for the use of masonic lodges of said town, the money to be expended solely for that purpose, and no portion of it for the purchase of ground on. which to erect said building; the application and payment of the money to be under the exclusive control of my said-executors, and the plan and arrangements of said masonic hall to be decided upon by my executors and John M. Barreré, present high priest of the Hillsboro Chaptei’, who are-hereby invested with a full discretion in the premises.” “25th. I hei’eby dii’ect that the intei’est or dividends accruing on said pi’incipal sum of $10,000, prior to its application as hereinbefore directed, shall be, by my executors,, after the collection of the-whole of said dividends or interests, paid over to the high priest, king and scribe (for the time being) of said Hillsboro Chapter, as a trust fund, to be, by said officers, under the direction of the said Hillsbox'oChapter, safely invested in stocks or mortgage securities. And I further direct that the interest or dividends annually accruing from such investment, together with the rents annually axlsing from the rooms in the basement of said masonic hall (if the same be built), be appropriated by said. Hillsboro Chapter to the relief of the widows and education of the children of such members of the Hillsboro lodges of Free and Accepted Masons as die poor.”
    By the 32d item, the testator nominated and appointed John Winston Price and David Johnson executors of his-last will and testament.
    
      John Winston Price having declined the trust, David Johnson was duly qualified as the sole executor of the will.
    On the 24th of October, 1861, all the precedent conditions and contingencies having transpired, the following agreement in writing was duly executed:
    “ These articles of agreement, made and entered into this 24th day of October, A. D. 1861, by and between David Johnson, executor of the last will and testament of Benjamin H. Johnson,.Sr., deceased, of the first part, and James H. Thompson, as principal, Wm. M. Meek, J. Milton Boyd, Edward Easton, Wm. O. Collins, John L. Hughes, J. J. Dryden, and James Reece, as his sureties, of the second part, witnesseth, that for, and in consideration of the sum of ten thousand dollars, which has this day been paid by the said David Johnson, executor as aforesaid, in accordance with the provisions of the last will and testament of the said Benjamin H. Johnson, deceased, in this behalf provided to the said James H. Thompson, and the receipt whereof is hereby acknowledged, they, the said James H. Thompson, as principal, and William M. Meek, J. Milton Boyd, Edward Easton, William O. Collins, John L. Hughes, J. J. Dryden, and James Reece, as his sureties, do hereby .agree to, aud with the said David Johnson, executor, as .aforesaid, and do hereby obligate and bind themselves, their heirs, executors ' and administrators, to the said David Johnson, executor, as aforesaid, his heirs, executors, administrators, and successors in office, that the said James H. Thompson shall, and will, within three years from the first day of -January, a. d. 1862, build, erect, complete, etc.” ....
    “ The said James H. Thompson, as principal, and the -said William M. Meek, J. Milton Boyd, Edward Easton, Wm. O. Collins, John L. Hughes, J. J. Dryden, and James Reece, as his sureties, do further covenant and agree with the said David Johnson, executor as aforesaid, that a superintendent of said building may be selected and designated by the trustees of Hillsboro Chapter, No. 40, of Royal Arch Masons, in the town of Hillsboro, whose reasonable wages And compensation for services shall be paid by said James H. Thompson at such sum and price as may be agreed upon by said David Johnson, executor, and the trustees of said Chapter. Given under our hands and seals at the date .above.”
    Signed and sealed by the parties'.
    On the 21st of May, 1864, David Johnson, having resigned the executorship of said last will and testament, Albert G. Mathews was duly qualified as administrator de bonis non of said estate, with the will annexed; and on the 8d of May, 1865, as such administrator, commenced his action for the breach of said agreement against James H. Thompson and his sureties, the defendants in error, alleging the performance of all the conditions to be performed on his part and on the part of his predecessor, and the failure of Thompson to perform any and all the conditions and promises on his part to be performed.
    Such proceedings were afterward had in the action, that judgment by default and by consent was rendered in favor of plaintiff and against the defendant, Thompson, for $12,500. But the defendants in error,. as sureties for Thompson in said bond, filed their separate answer, in substance as follows:
    “ That on October 14, 1858, they, together with others, including the said Thompson, had executed a promissory note for $10,000, at twelve months, with interest, to the said David Johnson, on which, on September 27, 1861, he brought suit against them for the balance thereon, amounting to over $7,000 ; that before said suit came on for trial, the said David Johnson proposed to these defendants, that if they would enter into the contract set forth in the plaintiff’s petition in this action, that he would accept the individual notes of Thompson in full satisfaction of the sum sued for, secured by a mortgage on certain real estate of Thompson, and dismiss the pending suit on the $10,000 note at the next term of the court, and release these defendants from all liability thereon. That these defendants accepted said proposition, and in consideration of the promises and agreements of the said David Johnson, and for no other consideration whatever, made and entered into the-said contract set forth in the petition as sureties for Thompson.
    “ That in pursuance of said agreement, Thompson executed and delivered his‘notes to the said David Johnson, and a mortgage on real estate to secure the payment of the same, which were accepted by him.
    “ That said Johnson, however, did not dismiss his said suit, but on November 8, 1861, without the knowledge and consent of these defendants, and in violation of his agreement with them, recovered a judgment therein against the-makers of said $10,000 note for $8,405.80, and afterward-caused executions to be issued and levied on Thompson’s land and that of others of these defendants ; that Thompson’s lauds were sold under said executions, whereby his-individual estate'was sacrificed and exhausted, and he was rendered insolvent and unable to comply with his contract to erect said building; that his sureties on said note were .compelled, by virtue of said executions, to pay and did pay toward the discharge of the same about $2,550.
    “ Wherefore, the defendants claimed that the consideration for which they made and entered into the agreement sued on, had wholly failed.
    “To this defense the plaintiff' demurred for general insufficiency; the demurrer was overruled, to which the-plaintiff excepted. A reply was then filed, denying the allegations of the answer, which issue was tried by a jury and a verdict being rendered in favor of the defendants, judgment was rendered accordingly.
    “ To reverse that judgment a petition in error was filed in the District Court, and reserved by that court for decision here.”
    
      Nelson Barrere, for plaintiff' in error :
    The agreement, being under seal, imports a consideration in and of itself. Not only so, but said contract, in expressing the consideration for which it was entered into, acknowledges the receipt thereof, by James H. Thompson as principal, and William M. Meek and others, his sureties; •and that there was no other consideration. The contract being in writing, any verbal promise or agreement made by David Johnson with the sureties of James H. Thompson is of no effect, because the contract sets forth the whole of the agreement entered into by the parties, and can not be changed, altered, or modified by any verbal understanding outside of it. See 1 Parsons’ Contracts, 829, 428; Sharrington v. Stratton, Plowd. 808; Schermerhorn v. Vanderheyden, 1 Johns. 139.
    True, many decisions hold that the maker of a written promise or a deed may, when there has been fraud or mistake, prove other and additional considerations. Quarles v. Quarles, 4 Mass. 680; Wilkinson v. Scott, 17 Mass. 249.
    Where the guaranty or promise to pay. the debt of another is made at the same time with the contract to which it is collateral, it is incorporated into it, and becomes part of it — the whole is one contract. And the want of consideration, as between the plaintiff and the guarantor, can not be alleged. Leonard v. Vredenburgh, 8 Johns. 29. See also Bailey & Bogart v. Freeman, 11 Johns. 219; Teneyck v. Vanderpool, 8 Johns. 120; Forth et al. v. Stanton, 1 Saund. 210, note; Hunt's Adm'r v. Adams, 5 Mass. 358; Mosher, Ex’r, etc. v. Hubbard, 13 Johns. 510; Schoonmaker v. Roosa & De Witt, 17 Johns. 300; Packard v. Richardson, 17 Mass. 121; 2 Saund. 134, note; 2 Parsons’ Contracts, 6-8; 1 Ib. 448, 450, 455, 463, 464. See also, as bearing on this subject, Ide v. Churchill, 14 Ohio St. 372; Harlan v. Reed, 3 Ohio, 285; Ohio v. Blake, 2 Ohio St. 147; Swank v. The State, 3 Ib. 429.
    But there is here no allegation of mistake or of any fraud in the making of the contract sued on.
    Whatever understanding there might have been between the sureties and David Johnson can not affect the contract set forth in the petition. The agreement therein set forth was entered into by David as executor of Benjamin H. Johnson, and for the purpose of carrying out one of the provisions of the will, and was not made by him as an individual. The claim of David Johnson against the sureties' for which he had brought suit, and which suit he agreed to-dismiss, was his own individual claim. If the facts set forth in said answer are true, David may have rendered himself liable to the sureties for any injury they may have-sustained by reason of his failure to abide by his verbal arrangement with them in relation to his individual claim, but can in no way or manner affect the validity of the agreement made by the said sureties with him as executor, nor the obligation of the said sureties to the estate of the said Benjamin H. Johnson. I repeat, that the facts set forth in said answer of the sureties do not constitute any defense to the plaintiff’s action, but- make, and can only make a cause of action in favor of said sureties against David Johnson as an individual, for a breach of the verbal agreement made by him with them, as they claim, for damages for any loss they may have sustained thereby.
    
      Matthews, Ramsey & Matthews, on same side:
    To entitle the defendants to maintain their defense, it must appear, as matter of law, that the performance by David Johnson, as an individual, of his promise, was a condition precedent to bis right, as executor, to enforce the-undertaking of the defendants. This does not appear, and is not alleged. The contrary is unequivocally manifest from the statement of the defense.
    The distinction between David Johnson, an individual, and David Johnson, executor, is quite material. The latter does not bind himself that the former shall perform his promise; on the contrary, it is the promise of David Johnson, as an individual, which is accepted by the defendants,, and which, being accepted, they acknowledge as an executed consideration moving from the executor.
    It was, therefore, as between the parties to this arrangement, an executed discharge, which needed only to be pleaded and proved to have constituted a bar to the further prosecution of the suit upon the note. By this record, it appears that David Johnson asserted a claim against these' parties, which by law he could not maintain; and that lie did so because the defendants, by refusing to defend, were guilty of abandoning their rights. They can not take advantage of their own wrong, and cast upon another the consequences for which they alone are responsible.
    The consequences which are alleged to have ensued from David Johnson’s not keeping his promise, and collecting the judgment by execution from Thompson — that he became insolvent thereby, and unable to perform and fulfill his part of the contract now sued on — can not be called in to aid the defense. It is not expressly stipulated, and it does not appear, by any reasonable implication, that the-performance by David Johnson was a condition to be performed, before the defendants were.to be required to perform, on their part, what they had agreed to do.
    There is nothing in the contract sued on that countenances the idea that its performance, on the part of the defendants, was dependent on anything not expressed in it; and if the defendants are at liberty, in that respect, to allege and prove anything existing in parol that varies or contradicts it, they do not, in the matters set up, show that their obligation was dependent upon the previous performance, by the individual, David Johnson, of the promise and agreement, which they allege he made to and with them, and afterward failed to keep.
    The rules of law for the settlement of this question are now clear and well understood. 2 Parsons on Contracts, 527; Ib. 529, note; Christie v. Borelly, 7 Com. Bench, N. S. 561; Langdell’s Select Cases on Contracts, 461, et seq., where all the principal cases, ancient and modern, are collected.
    II. Has the error complained of materially prejudiced the plaintiff in error. The whole record is open to the question, whether the judgment should be reversed. If the District Court erred in reversing the judgment of the Court of Common Pleas, sustaining the demurrer of the defendants and dismissing the petition, we admit that the two errors correct each other and the judgment must be sustained.
    That revives the inquiry, whether, on the face of the petition, it sufficiently appears that the plaintiff had legal capacity to maintain the action. The defendants maintain that David Johnson, in making the contract with the defendants, acted, not as executor of the will of Benjamin H. Johnson, but as a special trustee of the fund, or as legatee, holding the legal title in trust for a beneficial owner, separate from the assets of the estate; and that the plaintiff in error, as administrator de bonis non with the will annexed, did not succeed to his rights and title in the' latter character, and consequently has no legal interest which justifies his action upon the contract.
    To this we reply : 1. It is alleged in the petition that the defendants entered into the contract with David Johnson as executor, and thereby bound themselves to him, as executor as aforesaid, his heirs, executors, administrators, and successors in office; that the consideration was paid by the said David Johnson, executor as aforesaid; that David Johnson had duly qualified as sole executor of the will of Benjamin H. Johnson , that he was duly authorized and empowered by said will to make the said contract, which was done in accordance with one of the provisions of said will; that the plaintiff, Mathews, was duly appointed administrator de bonis non, with the will annexed, of said estate, David Johnson having resigned his office.. The contract, which is attached to the petition, recites that it is made with the said David Johnson, executor of the last will and testament of Benjamin H. Johnson, deceased, and he is referred to throughout, in all its provisions, as acting and contracting in that capacity and the contract being such as an executor might, by legal possibility, enter into, the conclusion, that the right to sue upon it for a breach devolved upon the plaintiff, as his successor in office, legitimately follows. And aside from the question of pleading, the defendants are estopped by the terms and recitals of-their own contract under seal, from denying that it was made with David as executor of Benjamin, and that consequently the right of action which has accrued from its breach, has passed to his successor in office. The contract, in fact and in form, was made with David Johnson as executor; and, even admitting that he was in equity a special trustee of the fund, the legal right to enforce the contract was in him as executor, and passed from him to his successor in that office.
    Whatever equities attach to it can be asserted against the present plaintiffj irrespective of the legal character in which he recovers it. It does not follow, because a fund when recovered will not be general assets of the estate, that the title and right to recover does not vest in the representaive of the estate, the executor or administrator, and belong to the office. Hassall v. Smithers, 12 Ves. 119; Parry v. Ashley, 3 Sim. 97; 2 Williams’ Ex’rs, 1576.
    The question here relates merely to the naked legal title. That follows the designation and terms of the contract itself, which being made with the executor, vests now in the administrator de bonis non, who has succeeded him.
    2. But the present plaintiff is the successor of David Johnson in the alleged trust, as well as to his office; because the trust, if separable from the executorship, is nevertheless an official, and not a personal trust, conferred upon the office, or the person for the time being exercising its functions, and not upon David Johnson personally. And it is a trust which, from its uature and the terms of its creation, is vested in the executor as a part of the scheme of the testator in the distribution and administration of his estate, and does not create an estate independent of the administration of a permanent character necessarily enduring after a final settlement of the estate. Here it is the mode prescribed by the testator for the payment of a legacy, a duty devolving on the executor by virtue of his office, and the trust must follow the duty.
    It is the duty of an executor, as defined by statute, “ to administer according to law and to the will of the testator all his goods, chattels, rights, and credits, and the proceeds of all his real estate that may be sold for the payment of his-debts or legacies,” etc. 1 S. & C. 567. An administrator appointed in the place of an executor or administrator who has resigned, been removed, or whose letters have been revoked, is entitled to the possession of all the personal effects and assets of the estate unadministered. 1 S. & C. 571. In cases of wills, in which there is a devise to executors to be sold or conveyed, or the estate is ordered to be sold, and the executors die, refuse to act, or neglect to take upon themselves the execution of the will, or resign, or are removed, either before such sale or after the sale, and before conveyance, the sale or conveyance shall be made by the administrator with the will annexed. 2 S. & C. 1629; Wills Act, sec. 65; Act of March 8, 1845, see. 1; 43 Stat. 66. And even in cases of testamentary trustees, other than those belonging to the office of executor, the Probate Court is authorized by section 67 of the wills act, 2 S. & C. 1630,. in case of the death, incapacity, or refusal of the trustee named to act, to appoint a suitable person in his stead — a-provision showing the distinction between trusts to be executed by the executor of a will, and those created by will, nominating as trustees persons other than the executor; the-former relating to the administration of the estate, the latter to permanent trusts created for the purpose of holding and managing it for the benefit of the persons to whom it-may belong after it has been administered.
    The subject of the distinction between trusts incident to the executorship, and those distinct from it, was carefully considered by the court in the case of Gandolfo v. Walker, 15 Ohio St. 251. Under the provisions of the will of Benjamin H. Johnson, it is to be noticed that although for six years the fuud is to be invested so as to produce interest by the executors, that interest is not to be paid as part of the legacy, and hence must belong to the estate, showing conclusively that during that period the equitable title in the-principal fund has not passed to the legatee, for interest being incident to, in that case, would follow the ownership-The executor is required to receive that interest in his charseter as representative of the estate, and not as a trustee for the legatee, and it is consequently assets in his hands. At the expiration of that period, and on failure of the prime object of the testator’s bounty, the principal sum is to be paid, in the manner pointed out, in the erection of a masonic hall. The payment of the legacy is made in that way. It is certainly one of the official functions of an executor to pay legacies, and in doing so to follow the directions of the will. In no sense is David Johnson created a trustee of an estate in real or personal property, to be held, managed, or conveyed to a cestui que trust. He is to do certain acts-in reference to money in his hands, forming part of the testator’s estate, by converting it into an improvement upon real estate, and so turning it from money into land; but it is the act of conversion which constitutes the payment to-the legatee, and that act he is charged with, by the will of the testator, as he is by the law itself, in his capacity as-executor. The investment of the fund so as to produce interest, he does manifestly as executor, and not as trustee. And the making of the contract in suit is his act as executor, by which he appropriates the money to the uses for which it was bequeathed. There was no trust to hold this-fund otherwise than as executor. He had no duty to perform in reference to it, when the time arrived for its appropriation, except to apply it as directed. And in doing this he necessarily performed one of the usual duties of the executor in the administration of an estate, by paying to or for the person entitled. See Gandolfo v. Walker, 15 Ohio St. 276; also, to the same effect, Hall v. Cushing, 9 Pick. 395; Dorr v. Wainwright, 13 Pick. 328; Towne v. Ammidoun, 20 Pick. 540; Newcomb v. Williams, 9 Met. 525; Conkey v. Dickinson, 13 Met. 51.
    
      J. Sloane, for defendants in error:
    The consideration to the sureties, for doing that which, as such, they agreed to do, was not the promise of Johnson that he would accept the individual notes of Thompson,, secured by a mortgage by Thompson and wife; not his 
      promise that he would dismiss the suit pending on the ten thousand dollar promissory note; not his promise that he would “release” them “from all liability on said note; nor all of them together. But it was the releasing of them, “from all liability on said note.”
    
    The releasing of them from all liability on the $10,000 note was a condition precedent to the right of the executor to recover in this suit. 1 Saund. 320, note 4; Barry v. Alsbury, 5 Litteil (Ky. Select Cases), 149, pt. 2.
    “Whether an agreement or covenant is dependent or independent, is determined by ascertaining from the contract or contracts the intention of the parties; there is nothing technical in it.” Comm’rs Clermont County v. Robb & Ferguson, 5 Ohio, 490; Courcier & Ravises v. Graham, 1 Ohio, 330, 341.
    In and by the contract sued on, the securities incurred the liability to pay damages if Thompson failed to build the hall, as required by the contract. This liability they agreed to incur, in consideration that their other liability (their liability on the $10,000 note) should be extinguished. This, in legal effect, is the agreement between them and Johnson. The release itself, and not the acts by which it was to be effected, being the consideration, a total failure of consideration is clearly set up in, and shown by the answer.
    II. But the total failure of consideration is sometimes available as a defense, when the covenants are independent, and the performanee of one is not a condition precedent to the light to demand the performance of the other. Story on Contracts, 484, sec. 480; Ib. 489, sec. 483; Com. Dig., Cov. F.; Yelv. 18; 2 Parsons’ Contracts, 189-191; French v. Millard, 2 Ohio St. 45.
    Where the consideration of the contract, on one side, consists wholly in doing something, and the time for doing it has elapsed, and the party who was to do it can not, for some cause, do it at all, the consideration, it is clear, has wholly failed: and it is a matter, of indifference whether we say the other party may treat the contract as rescinded or abandoned; and if sued on it, defend on that ground, or that he may defend on the ground of a failure of consideration : it amounts to the same thing. In such case it may,, as by the answer in this case it does, appear, both, that that had occurred which authorized the party to treat the contract as rescinded or abandoned, and that the consideration had wholly failed.
    III. But it is said that David Johnson, the executor, and. David Johnson, the individual, are, legally speaking, different persons. ' Let this be granted, and there is nothing, of argument, in the thought.
    The ease is put of a third person holding in this- transaction the part filled by David Johnson, as an individual.. But let us add to the supposition another supposed fact— that Johnson, the executor, was present at the making of the contract between the sureties and the third person, assented to it, and knowingly received them as sureties on. the masonic hall contract, they becoming such for that' consideration, to move from the third person, and, in fact,. for no other consideration, and the third person knowing that Johnson, the executor, so received them.
    Now, in this state of case, to enforce the hall contract against them, would be to enforce an agreement which had no consideration to support it; for, as heretofore shown,., an agreement, the consideration of which has wholly failed, is as an agreement which never had a consideration-it is void.
    Since Johnson, the executor, received the seven men. as sureties on Thompson’s contract to build the hall, on the faith of the promise of the third person that he would release them from their liability on his $10,000 note, Johnson, the executor, would have a right of action against the third person for all the damages occasioned to the estate,. by the default of the third person, whereby the hall contract, as against them, had, by reason of the failure of consideration, been rendered inoperative and void; the acceptance of the sureties by Johnson, the executor, on the faith of the promise of the third person to release them from., liability to him, establishing .a privity and constituting a. consideration, to support such an action by Johnson, the executor’, against the third person. It is thought the authorities sustain this view. Story on Contracts, 453, sec. 450, citing Tipper v. Bicknell, 5 Bing. New Cases, (Eng.) 710; Webb v. Rhodes, 3 Bing. New Cases, (Eng.) 784.
    If Johnson, in the case supposed, would have a right of action against the third person for the damages which the estate has suffered, why should the void contract be enforced, and the sufferers from this legal wrong turned over to a suit against the third person for reparation, when, in one suit by Johnson, the executor, the end could be accomplished, and no innocent person be made to suffer, or be put to inconvenience ?
    Again, suppose the third person is now insolvent, shall the securities pay the sum of $18,000 on a void contract, and lose it wholly? Who should suffer, Johnson or the sureties ?
    IY. But David Johnson, the executor, and David Johnson, the individual, are not two different persons in any sense. There is but one person acting in respect of the transaction in question, in two different capacities.
    In making the contract with Thompson for the building of the hall, David Johnson acted as executor,'or special trustee; but in procuring the seven men to become Thompson’s securities for the building of the hall, and in arranging the consideration for which they became such securities, he .acted, it may be said, in his unofficial capacity. But whatever David Johnson, the unofficial person, did in the premises, David Johnson, the executor, had knowledge of and consented to. The man, David Johnson, then, could have given to the seven the consideration for and by which he induced them to become securities on the hall contract; the man, Johnson, refused to do it, broke his contract, and thereby furnished the seven men a legal reason for treating as rescinded and abandoned, for failure of consideration, the hall contract as between them and him. No notice to him was required to be given; he knew all. It is thought, therefore, the case is very different from what it would have been, had the $10,000 note been held by a stranger, and such stranger had agreed to release the seven men from liability on it, in consideration of their signing the hall contract.
    V. Mr. Barrere, in his argument, says :
    “But said contract, in expressing the consideration for which it was entered into, acknowledges the receipt thereof (of the $10,000) by the said James H. Thompson as principal, and William M. Meek and others, his sureties, and that there was no other consideration for which said contract was entered into.”
    This is loose writing. The language of the contract is this:
    “ That for and in consideration of the sum of $10,000, which has this day been paid by the said David Johnson, executor as aforesaid ... to the said James H. Thompson, and the receipt whereof is hereby acknowledged, they . . . do hereby agree,” etc.
    But the answer of the sureties states that there was, in fact, another and different consideration moving and inducing them to become bound, and it furthermore states that they, the sureties, become bound “for no other consideration whatever” than this one, other than the $10,000 paid to Thompson.
    The demurrer admits this fact as alleged in the answer.
    “When the parties themselves do not rely upon the writing as drawn, but admit the contract to be other than that which it exhibits, the rule as to the inadmissibility of parol evidence has no application.” Strader v. Lambeth, etc., 7 B. Mon. 589, 590.
    The demurrer to the answer being overruled, the plaintiff replied, denying specifically every statement in the answer of the securities. Thus several issues were made, and among them these :
    1. Was the consideration which moved and induced the seven men to sign the hall contract, what, in their answer, it was alleged to have been ?
    
      2. If so, had it failed, as in the answer it was alleged it had ?'
    It was on the trial of these issues that Mr. Barrere’squestion, now insisted on, whether a different consideration than' the ten thousand dollars paid to Thompson could be proved by parol, could properly have been made. It Avasnot made: the evidence was admitted without objection. Hence, there is no question for this court upon that point. No such question could have been made on the demurrerEor aught that appeared in the ansAver, the defendants stood ready to prove, by an instrument of writing under seal, executed and delivered contemporaneously with the execution and delivery of the hall contract, that they signed the’ hall contract on and for the consideration they had set forth in their answer. 1 Greenl. Ev. 373.
    VI. But it seems to be maintained by the adverse counsel that there was something wrong in David Johnson, he being' executor, contracting to give up a right of his own in order to induce the seven men to become Thompson’s sureties on the hall contract. For Johnson to have surrendered a right of the estate to secure a right of his own, would have been wrong; but for Johnson, in order to secure a right of the estate, or of the beneficiaries under the will, to surrenders right of his own, surely is not wrong, either in morals or in law.
    VII. As to scrawl seals and consideration. That á seal “ imports a consideration ” is admitted; but that it imports it conclusively, in Ohio, now, is denied. “A total failure of consideration constitutes a good defense generally to an action on a sealed as well as an unsealed instrument; for if the foundation of the covenant fail, the covenant fails also.” Story on Contracts, 489, sec. 483, citing Com. Dig., Cov. F., and Yelv. 18.
    VIII. By the will of Benjamin H. Johnson the $10,000 were constituted a special trust fund, of which David Johnson and John Winston Price were made special trustees; whatever Johnson did, in respect of this fund, after its separation from the general assets of the estate, he did as special trustee, and not as executor; in resigning his office-of executor, he did not resign the special trusteeship; the-Probate Court, in appointing Albert G-. Mathews administrator de bonis non, with the will annexed, did not appoint him special trustee of this fund ; and, as a consequence of these propositions, Albert G. Mathews had no right to maintain the action on the hall contract. His demurrer reaches back to his own petition; and if he had no right to bring and maintain the action, the judgment of the-Common Pleas will be affirmed, whatever might be the opinion of this court, in regard to the ruling of that court,, on the demurrer.
    [Mr. Sloan filed a pamphlet containing his citations of authorities in support of his eighth position, but it failed to come to the hands of the reporter.]
   McIlvaine, J.

The overruling of the demurrer to the-answer of defendants is assigned for error. By this demurrer, not only the sufficiency of the answer, but also the sufficiency of the petition, was drawn in question ; and it is insisted by defendants in error that upon the face of the petition it appears that the plaintiff in error had no interest in the cause of action therein stated, or, in other words, that the right of action on the bond accrued to David Johnson, as special trustee under the will, and not as executor ; and therefore the plaintiff in error did not succeed to-the power of managing this special trust, or the right to sue for a breach of this bond.

It is undoubtedly true that a testator may, by his will, cx-eate a special trust as to a particular fund, over which the executor is not authorized or required to exercise his official control or management. But, as a general rule, the power's of the executor are co-extensive with the trusts created by the will. The office of executor is only that of a trustee, and the whole will is looked to for-the purpose of ascertaining the nature and extent of the trusts created thereby, and the powers of the executor in relation thereto; and while the executor is engaged in administering any and all the trusts created by the will, it must be presumed that he is acting in the capacity of executor alone, unless it plainly appears that such was not the' intention. To constitute the person named in the will as executor a special trustee, separate and apart from his office of executor, it is' not enough that the powers granted to him, or the duties imposed upon him in relation to a particular fund, be such as are unusual in the course of ordinary administration : it must also appear that the intention was to withdraw the particular trust from the management and control of the executor as such, and to create a separate office for its management; and this must appear in the face of the presumption that every provision made in the will for the management of the estate, and every part thereof before it passes into the hands of the beneficiary, was intended as a direction to the executor in his official character.

Now, in the will of Benjamin H. Johnson, there is not a single expression from which it can be clearly inferred that the testator intended that the parties named in the will as executors should manage this fund in the capacity of special trustees, and not in the capacity of executors. On the contrary, every power, duty, or discretion touching the management of this fund is given to the executors by official designation. It is true the language is, “I give and bequeath to my executors in trust; ” but we are of opinion that the testator intended the ordinary import of these words, to wit, that the bequest was to the officers named as such, and not to certain persons described by their official designation.

And it will be observed that the “executors” were to put the sum at interest for the period of six years, and the interest accruing was made a separate trust fund for, different uses, which the “executors” were directed to manage; and at the expiration of the six years the “ executors” were charged with the appropriation of the principal sum to the objects of the trust. It is also worthy of note, that this money was paid to Thompson by David Johnson, as “executor,” and the bond upon which suit was brought was executed by the defendants to David Johnson, as “executor of the last will and testament of Benjamin H. Johnson.”

In our opinion, the plaintiff in error, as the successor of David Johnson, in the office of personal representative of Benjamin H. Johnson’s estate, succeeded to the control of this trust, and to the right to sue for a breach of this bond.

The next question to be considered is the sufficiency of the answer. The only defense sought to be made by the -sureties was, that, as to them, the consideration of the bond upon which suit was brought, had wholly failed.

The rule of the code is, that every material allegation of the petition, not controverted by the answer, shall, for the purposes of the action, be taken as true. Now, there is not in the answer any denial, either general or specific, of the truth of any allegation of the petition. How, then, stands the case upon the petition and answer?-

The substance of the petition is, that the obligee of the bond, at the time of its execution, paid to James H. Thompson, the principal obligor, the sum of ten thousand dollars, and that in consideration thereof, said Thompson, as principal, and said defendants, as his sureties, executed and delivered the bond to the obligee.

The substance of the answer is, that David Johnson, who, as executor of Benjamin H. Johnson, was obligee in the bond, proposed to and promised the defendants, in consideration that they would obligate themselves to the estate which he represented, as sureties for Thompson, in this -bond, that he would release and discharge them from all' liability on account of certain demands which he held against them in his individual right. That in consideration of said promise and agreement, and for no other consideration whatever, they made and entered into said bond. That said Johnson failed to keep and perform his promise and agreement to release and discharge -them from such liability, wherefore the consideration for which they entered into the bond set forth in the petition has wholly failed.

Now, the averment in the answer, that the sureties entered into the bond for no other consideration whatever than the promise and agreement of Johnson, must be understood as meaning that there was no other consideration, moving to them directly, or for their personal benefit. But it by no means follows that their obligation, as written in the bond, is unsupported by any other consideration; for it is admitted, “for the purposes of the action,” that ten thousand dollars of money was paid, by the executor of Johnson’s estate, to James II. Thompson, their principal in the bond, as a consideration for their undertaking as bid-sureties. The relation between Thompson and the defendants, as principal and sureties, is admitted, and as a matter of law, the consideration which binds the principal to his engagement, will also bind the sureties to their engagement;. Hence it follows that the legal conclusion averred in the-answer, to wit, “that the consideration for which they made and entered- into the agreement set forth in the plaintiff’s petition has wholly failed,” is not warranted by the state of facts appearing on the record itself, and therefore the truth of the conclusion will not be regarded as admitted by the demurrer.

But if we rest the sufficiency of this answer upon its own statement of facts, without reference to undisputed allegations in the petition, we can not say, in point of law,, that the consideration of defendants’ bond has wholly failed.

The consideration of their undertaking, as stated in the-answer, was the promise and agreement of David Johnson, made in his individual capacity, to release the defendants from all liability on an obligation due to him in his own right. True he has failed to perform his promise and agreement, to the injury of defendants; but it is not averred that the performance of the promise and agreement was the consideration of their entering into the undertaking to him as the representative of Johnson’s estate: the allegation is-that the promise itself was the consideration. Thus we have a case in which one promise was made in consideration of another promise, which, in law, is a good consideration. The performance of neither promise was made dependent upon the performance of the other. Both contracts were executory, but the execution was not reciprocal. The release of the defendants was not to be executed by the parly to whom the promise of the defendants was made. Each party to the several agreements well understood the respective rights and duties involved. There is no allegation of fraud or mistake — no ground stated for the application of the doctrine of estoppel. Undoubtedly .the defendants expected that Johnson would perform his promise and release them from liability to him -on account of his individual demand, but the estate did not undertake to execute the release. Indeed, the representative of the estate, in his official capacity, could not have done so if he had contracted, to do it. The defendants knew all this, and knowing it, they accepted the individual promise and agreement of Johnson for that purpose. The -estate, however, through its representative, upon the faith of the defendants’ undertaking, paid ten thousand dollars to Thompson, who has made default. For this default the estate is entitled to its action against Thompson and his sureties; and for the default of Johnson, in failing to perform his promise to the defendants, they have a good cause of action against him. In our judgment, these two contracts, from the moment they were made, were as distinct and independent of each other, as they would have been if the private and official relations of David Johnson had been occupied by different persons. The parties to each stood toward each other according to the terms of the respective agreements. For the violation of either, the parties thereto had a right to resort to such action as the law provided therefor, without reference to, and wholly independent of the conditions of the other contract.

It follows, therefore, that the judgment below must be reversed, the demurrer to the answer sustained, and the cause remanded for further proceedings.  