trustee, the court may determine from the whole will whether he is to act as trustee. If the trust is given to one named, and the same person is afterwards appointed executor, the trust is not annexed to the office of executor.2 The conditions of bonds of administrators are to administer the estate according to law. Bonds of executors are conditioned to administer an estate according to the will, though a condition. to administer according to law is the same thing, because by law they are to administer according to the will. If, therefore, by the terms of the will the executor, as executor, is to keep the estate, or any portion of it, in his hands, and is to deal with it as a trustee, his bond will be held as security for the faithful performance of his duties, though such duties are much larger and different from those of an ordinary executor. Where the income of property is given to one for life, and at his death the property is given over to another, and no trustee is named in the will, the executor is the trustee to hold the property during the life of the legatee for life. If, however, the will contemplates that the executor, as such, is to perform only the ordinary duties of an executor, and that when the estate is settled by him, another duty is to arise to be performed, either by him or by another, then the bond of the executor is not security for those further duties; but the person who is to perform them must accept

418; Knight v. Loomis, 30 Me. 204; Wheatley v. Badger, 7 Pa. St. 459. But see Anderson v. Earle, 9 S. C. 460.

1 Sawyer's App. 16 N. H. 459; Carson v. Carson, 6 Allen, 397; Howard v. Amer. Peace Soc. 49 Me. 288, 306. An executor must administer the trust created by will where there is no designation of the executor or any other person as trustee. Pettingill v. Pettingill, 60 Me. 412; Richardson v. Knight, 69 Me. 385.

2 James's App. 3 Grant, 169.

8 Saunderson v. Stearns, 6 Mass. 37; Prescott v. Pitts, 9 Mass. 376; Hall v. Cushing, 9 Pick. 395; Dorr v. Wainwright, 13 Pick. 328; Towne v. Ammidown, 20 Pick. 325; Perkins v. Moore, 16 Ala. 9; State v. Nicols, 10 Gill & J. 27; Wilson's Estate, 2 Pa. St. 325; Sheet's Est. 52 Pa. St. 257; Lansing v. Lansing, 45 Barb. 182.

4 Wheeler v. Perry, 18 N. H. 307.

the office, and give a bond for their performance.1 It may be further observed, that an executor will be considered as holding a legacy in his capacity as executor, unless the will clearly shows that the testator intended that he should hold it in the character of a trustee. But after the lapse of twenty years the law will presume that an estate was fully administered, and that thereafter the executor held the funds as trustee.

So, if it appears that the executor made an actual final settlement of the estate as executor, he will be presumed to hold subsequently as a trustee. As a general rule, executors' and trustees' bonds can be sued only by leave of court, upon good cause shown.5

§ 263. If the same person is both executor and trustee, it is sometimes difficult to determine whether, in a particular case, he is acting as executor or trustee. In England, the rule seems to be that if the executor assents to the legacy, if it is specific, or if part of the assets are clearly set apart and appropriated by him to answer a particular legacy, he will be considered to hold the fund as trustee for that trust, and not as executor. In jurisdictions where executors and trustees are required to qualify and give bonds, it has been held that an executor, who is also a trustee under the will, cannot be considered as holding any part of the assets as trustee, until he has settled his account at the probate office as executor, and has been credited with the amount as execu

1 Knight v. Loomis, 30 Me. 204; Mastin v. Barnard, 33 Ga. 520; Perkins v. Lewis, 41 Ala. 641; Parsons v. Lyman, 5 Blatch. C. C. 170; Spark's Est. 1 Tuck. Sur. 443.

2 State v. Nicols, 10 Gill & J. 27.

3 Jennings v. Davis, 5 Dana, 127.

4 State v. Hearst, 12 Miss. 365.

5 Floyd v. Gilliam, 6 Jones, Eq. 183.

• Dix v. Burford, 19 Beav. 409; Brougham v. Poulett, ib. 119; Ex parte Dover, 5 Sim. 500; Phillipo v. Munnings, 2 M. & Cr. 309; Byrchall v. Bradford, 6 Madd. 13; Ex parte Wilkinson, 3 Mont. & Ayr. 145; Willmot v. Jenkins, 1 Beav. 401.

tor with which he is afterwards to be charged as trustee.1 In other cases it has been held that the change of property from the executor to the trustee, where they are the same persons, may be shown by some authoritative and notorious act; 2 but that the mere determination of the executor, in his own mind, to hold certain particular property thereafter in trust for a particular legatee under the will, is not such a setting apart as to discharge him from his liability as executor, and to charge him as trustee. Where the executor may thus act in a double capacity, he must account in his capacity as executor, and the sureties on his bond as executor will be liable for the faithful discharge of his duties as such, until he has transferred his account to himself as trustee,

1 Hall v. Cushing, 9 Pick. 395; Prior v. Talbot, 10 Cush. 1; Perkins v. Moore, 16 Ala. 9; Elliott v. Sparrell, 114 Mass. 404; Muse v. Sawyer, T. R. 204.

2 Newcomb v. Williams, 9 Met. 534; Conkey v. Dickinson, 13 Met. 53; Hubbard v. Lloyd, 6 Cush. 522; De Peyster v. Clendining, 8 Paige, 310; Pyron v. Mood, 2 McMull. 288; Hitchcock v. Bank of U. S. 7 Ala. 386; Perkins v. Moore, 16 Ala. 9; State v. Brown, 68 N. C. 554; Tyler v. Deblois, 4 Mason, 131. A defaulting trustee who becomes entitled to a portion of the trust, being one of the next of kin to a deceased cestui que trust, will be held to have paid himself, and the share standing to his account on distribution will be paid to the other cestuis que trust, to the extent of the defalcation. Jacobs v. Ryland, L. R. 15 Eq. 341. See Ruffin v. Harrison, 81 N. C. 208, in which the court, from an examination of the cases cited, deduced the following principles: 1. Where the simple relation of debtor and creditor exists, and the same person, representing both, is to pay and receive, the possession of assets which ought to be applied to the debts is in law an application. 2. Where one is clothed with a double fiduciary capacity, and the balance remaining upon a full execution of one trust belongs to the other, if the amount has been ascertained definitely and authoritatively and the fund is then in the trustee's hands, the law makes the transfer. 3. If the first trust is not closed, although the trustee may have rendered an account, which has not been passed upon by a competent tribunal, the fund remains unchanged, and is held as before. 4. The trustee may, by an unequivocal act indicating the intent, elect to hold the fund in possession in another capacity, and it will be thereby transferred.

Miller v. Congdon, 14 Gray, 114. The question, in this case, was whether the estate or the legatee should suffer a certain loss; but it was not a question whether the executor should bear the loss in person.

and given a bond as trustee.1 But, at the same time, it is held that if the executor, acting as trustee under such a will, acts with fidelity and due diligence, he and his sureties will not be responsible should any loss happen either to the principal or interest of the trust fund; that is, that his liability in such a case is rather that of a trustee than that of an executor; and if he has acted in good faith in the investment of the legacy, any loss that may occur without his fault will fall upon the legatee or cestui que trust, and not upon him nor the estate. Where a decree in chancery created a separate estate for a married woman, and the court appointed a trustee to receive it, and ordered him to give bond for the faithful administration of the trust, the property vested in him upon his giving bond, and continued during his life; and, at his death, it did not vest in the cestui que trust, but remained subject to the orders of the court.4

§ 264. The executor of an executor, by accepting the office from his immediate testator, becomes the executor and trustee of his testator's testator. This is the rule in England, where an executor comes into possession of all the assets in the hands of his testator, in whatever capacity such testator held them; and, by accepting the duty of administering the estate of his immediate testator, he accepts the duty of administering all the trusts with which the assets in his testator's hands were charged. An executor must

1 Prior v. Talbot, 10 Cush. 1. A charge of the amount set apart in executor's account settled in Probate Court is conclusive against the executor. Elliott v. Sparrell, 114 Mass. 404.

2 Hubbard v. Lloyd, 6 Cush. 522; Brown v. Kelsey, 2 Cush. 248; Dorr v. Wainwright, 13 Pick. 332; Right v. Cathill, 5 East, 491; Denne v. Judge, 11 East, 288.

8 Ibid.

4 Witter v. Duley, 36 Ala. 135.

5 In the Goods of Perry, 2 Curt. 655; Goods of Beer, 15 Jur. 160; Shep. Touch. by Preston, 464; Wankford v. Wankford, Freem. 520; Haytan v. Wolfe, Cro. Jac. 614; Palm. 156; Hutt. 30; Schenck v. Schenck,

administer an account for all the assets that come to his hands. If his testator held goods of a previous testator unadministered, or if his testator held assets as a trustee, probate courts may appoint an administrator with the will annexed of the first testator, or a new trustee; and it will be the duty of the executor of the last testator to settle an account with the administrator with the will annexed, or with the new trustee, and to pay over to them the assets that came to his hands. Until such proceedings are had, he will hold such assets upon the same terms and trusts that his testator held them; and it will be his duty to administer them accordingly. The proposition may be briefly stated thus: An executor, in proving the will and in accepting the office from his immediate testator, accepts not only all the trusts imposed by the immediate will under which he acts, but also all the trusts in respect to the assets which come to his hands with which his immediate testator was charged; and he must execute those trusts until he is relieved by a new appointment in the Probate Court, and a settlement and payment over of the assets. He will not be allowed to accept the trusts created by his immediate testator, and to repudiate those with which his testator was himself charged.1 And so, a trustee cannot limit his acceptance and liability to any particular portion of the trust. For if he acts at all, though he disclaim a part, he will be held to have accepted the entire trust;2 as if one is appointed trustee of real and

16 N. J. Eq. 174; Maudlin v. Armisted, 14 Ala. 702; Nichols v. Campbell, 10 Gratt. 561. See Knight v. Loomis, 30 Me. 204, where it is said that an administrator de bonis under the will of a trustee is not constituted trustee by his appointment.

1 Worth v. McAden, 1 Dev. & Bat. 199; Mitchell v. Adams, 1 Ired. (Law) 298; King v. Lawrence, 14 Wis. 238; Schenck v. Schenck, 1 Green, Ch. 174.

2 Urch v. Walker, 3 M. & Cr. 702; Read v. Truelove, Amb. 417; Doyle v. Blake, 2 Sch. & Lef. 231; Van Horn v. Fonda, 5 Johns. Ch. 403; Champlin v. Givens, 1 Rice, Eq. 154; Cummins v. Cummins, 3 Jon. & La. 64; Latimer v. Hanson, 1 Bland, 51; Flint v. Clinton Co. 12 N. H. 432.