
    Patchen & Patchen, adm’rs, &c. vs. Wilson.
    An executor or adminstrator who fails in an action necessarily brought in his representative capacity, is not liable to pay costs except in the cases specified in 2 R. S. 615, §17.
    Goods and chattels, on the death of the owner, vest in his personal representative ; and if they be afterwards tortiously taken or wrongfully converted, he may sue for them in his own name without describing himself as exécutor or administrator.
    Otherwise, where the executor or administrator sues on a contract made with the testator or intestate. In such case, unless the contract be a promissory note payable to bearer, the action must be prosecuted by the representative as such; and this, though the time for payment or performance had not arrived when the testator or intestate died.
    The plaintiffs brought assumpsit for money had and received by the defendant to the use of the intestate in his life time. The defendant, as an attorney and counsellor, had done business for the intestate, and, in January, 1838, collected and received upwards of $8000 in money belonging to the intestate. The defendant paid over to the intestate all but the sum of $6000, which he retained in his hands j and after the intestate died in 1840, the administrators brought this action to recover the money. It appeared on the hearing of the cause before referees, that the intestate agreed the defendant should retain the $6000 in his hands without interest, until the litigation in which the intestate was then engaged should be terminated. Two suits were still pending when the intestate died. The defendant claimed a set-off for his services, amounting to upwards of $13,000, and the referees reported that $453,99 was due the defendant.
    
      S. Stevens, for the defendant,
    now moved for costs against the plaintiffs, on the ground that they did not necessarily sue in-their representative character. (The People v. Judges of Albany, 9 Wend. 486, and cases there cited.)
    
    
      J. Edwards, for the plaintiffs.
   By the Court,

Bronson, J.

The cases on which the defendant relies were actions of replevin and trover to recover goods and chattels which belonged to the testator at the time of his death, and which were afterwards tortiously taken or wrongfully converted. As such property vests, on the death of the testator, in the personal representative, the wrong was done to him, and he could sue in his own name without calling himself executor. But it is not so where the executor sues on a contract made with the testator. There he must necessarily sue in his representative character; and this is so, although the time for payment or performance had not arrived when the testator died. In the case of a chattel, the representative may sue in his own name, and then use the letters testamentary as a part of his chain of title. But except upon a note payable to bearer, the representative cannot sue on a contract made with his testator without calling himself executor. Here the administrators necessarily prosecuted the suit in the right of the intestate, and although they have failed, they are not liable to pay costs.

Motion denied. 
      
      
         See Reynolds, adm’r &c. v. Collins, ex’r & (3 Hill, 441.)
     