CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-YORK. In May Term, 1840--in the sixty-fourth year of the Independence of the United States. [Continued from Vol. XXIII.] DIAS vs. BRUNELL'S executor. An action at law will not lie by a cestui que trust, against the executor of a trustee, created by an assignment for the benefit of creditors, upon an implied promise arising from the acceptance of the trust, and the conversion of the fund into money; the party must resort to equity. It seems, had there been an express promise by the testator, and there had been assets, that an action would have lain against the executor. but Property held in trust, on the death of the trustee, at common law passed to his executor; not as assets. He took not as executor but as a trustee, subject to the same stipulations and conditions under which it was held by the testator. Now, by the revised statutes, it seems the trust vests in the court, of chancery with all the powers and duties of the original trustee, and mustbe executed by some person appointed for that purpose under the direction of the court. 1 R. S. 2d. ed. p. 724, § 68. DEMURRER to declaration. The plaintiff declared in assumpsit, setting forth that on the 14th day of May, 1833, two individuals, named Castro and lienriquez, executed to the testator, his heirs, executors, administrators, and assigns, a conveyance of divers goods, &c. of the value of $100,000, in trust to convert the same into money and apply the proceeds: 1. To *the payment of the expenses of the trust; 2. To repay himself cer- [10] tain advances, and 3. To pay certain bonds to the United States, ex |