#### In the Matter of the Estate of John G. Besley, deceased.

A testator devised and bequeathed all his estate to his son J. B., “ sole executor of this my [his] last will,” with power to dispose of the same in such manner as to him (J. B.) should seem meet, for the payment of the testator’s debts, anjl for the use and benefit of his daughter Gh B., so long as she should continue insane. J. B. died after paying all the debts of the estate; and Gt. B. still continued insane. *Seld,*that a person appointed administrator of said estafe with the will annexed, did not succeed to the rights and duties of J. B., and was not entitled to any part of the estate.

Sec. 11, ch. 98, R. S., does not change the law upon this subject. The acts and trnsts there spoken of must be understood to be those properly pertaining to the office of executor.

The words “ sole executor ” &c., in the will, must be taken as ampre *^sseripiio personal.*

*452APPEAL from the Circuit Court for *Milwaukee*County.

James Besley died in June, 1855, leaving a will, in which, after bequeathing a certain note to James G. Besley, one of his sons, he added: “ I give and devise all my real and personal estate, except the above mentioned note, to my son James G. Besley, sole executor of this my last will and testament, in trust, with power to dispose of the same in such manner as to him shall seem meet, for the payment of my just debts and for the use and benefit of my only and afflicted daughter, Gertrude Besley, so lo*g as she shall remain insane, to be used for her support and maintenance during her natural life; and after her decease, I give and devise all that may remain to my son James G. Besley and his heirs forever: but should my said daughter Gertrude be restored to the full use of her sound mind, then I give and devise unto her an amount equal to two thousand dollars, and the remainder, if any, I give and devise unto my said son James G. Besley and his heirs; and I do hereby nominate and appoint my son James G. Besley to be my sole executor of this my last will ” &c. By the inventory of said estate, filed by the executor in November, 1855, it appeared that, in addition to the note specifically bequeathed to James G. Besley, it consisted of a note made by said James G. Besley, for $2,267, dated December 20th, 1852, payable one year from date, and secured by mortgage on real estate in Fond du Lac county. In 1857, James G. Besley, in pursuance of a contract entered into in 1858 between himself and his brother *Oliver*Besley, conveyed to said *Oliver*the real property on which said mortgage was given, and took from *Oliver*a note for $2,877 of the purchase money, secured by a mortgage of the same property running to himself; and at the same time, as. executor of James Besley, executed a release of the former mortgage “in consideration of $2,377 to him paid,” which release was duly recorded. James G. Besley died in February, 1858, having previously paid all debts of the estate, and having also pledged the mortgage of *Oliver Besley**453to tbe Bridgeport Bank, Connecticut, as security for bis notes given to that bank. One *Allis*became administrator of the estate of said James 0. Besley, by appointment of the county court of Milwaukee county ; and in February, 1859, *Oliver Besley*was appointed, by the county court of Fond du Lac county, administrator *de bonis non*of the estate of James Bes-ley, with the will annexed. In June, 1861, *Oliver Besley*presented to the county court of Milwaukee county a petition, which alleged that as such administrator he was entitled to the possession of said mortgage by him executed to James *Gr.*Bes-ley, on the ground that it was a part of the property of the estate of James Besley; that said *Allis*claimed the mortgage as administrator of James Gr. Besley, and refused to deliver the same to him, said Oliver, or to authorize the Bridgeport Bank to deliver it; and that he, said *Oliver,*had paid said bank the whole amount due it on the note of James G\ Besley for which the mortgage was deposited as collateral security. The petition therefore prays the court for an order declaring said mortgage to be the property of the estate of James Besley; and that the petitioner was entitled to the possession thereof as administrator of said estate; and directing said *Allis*to surrender the same to him, or to authorize and request the said bank to do so. The county court denied the prayer of the petition, and *Oliver Besley*appealed to the circuit court. On the trial, that court found the facts substantially as above stated, and also that Gertrude Besley was still surviving and insane. On these facts the court held that James G. Besley had held said note and mortgage not as executor but under a special trust, and that “ the petitioner had no right to them in his official capacity;” and rendered judgment affirming the decision of the county court. From this judgment *Oliver Besley*appealed.

*Smith & Salomon*for appellants,

cited R. S., ch. 98, secs. 10, 12; ch. 99, secs. 11, 15; ch. 100. sec. 7; ch. 97, sec. 25; 2. Williams on Ex’rs, 823 ; *Wood v. Wood,*4 Paige, 299, 303-4. *454James G. Besley received tbe mortgage as executor of tbe will, and be never could divest bimself of that character until be bad completely performed all tbe conditions of tbe will. If tbe property left to him had been *real*estate, be could have held, under tbe old law, and perhaps even under our statutes, as a trustee; for tbe executor only toot tbe personalty. *Bo-gert v. Heriell,*4 Hill, 492, 495, 50*3, 507, *et seq.*Tbe policy of our law requires that persons so taking and bolding trust property should give bonds for its proper management. James G* Besley did so. *Oliver Besley,*bis successor in tbe right to the mortgage, has done so. Tbe respondent has *not*done so. His sureties answer only for tbe interest of James G. Besley, but are not held for the respondent’s liability towards Gertrude Besley. R. S., cb. 98, secs. 1, 2, 7, 10, 12. Only tbe appellant is held responsible for tbe property in question, and be has powers and rights proportioned to his responsibility. R. S., ch. 102, secs. 1, 4, 9; ch. 104, secs. 1, 4. There has been no final settlement of tbe estate of James Besley, which alone would divest tbe executor or administrator of tbe control. R. S., cb. 102, secs. 1, 2, 4, 9,14; ch. 108, secs. 2, 8, 4,5, 17, *18; Spencer v. Church,*2 Root, 80.

*Wells & Brigham,*for respondent *Allis,*

cited *Conlclin v. Bger-tons1 Ad'mirs,*21 Wend., 430; *Bx parte Jenldns,*1 Barn. & Cress., 655.

*By the Court,*

Dixoít, C. J.

James G. Besley was not only tbe executor of tbe will, and charged with all tbe duties appertaining to that office, but be was also legatee in trust, with tbe peculiar duties prescribed in tbe will. Tbe duties thus specially imposed were of a delicate and responsible character, and quite distinct from those usually devolved on tbe office of executor. That they were in a great measure discretionary and personal, and not official, hardly admits of doubt. “ I give and devise all my real and personal estate of what nature or kind soever, except tbe above mentioned note, to my son James G. *455Besley, sole executor of this my last will and testament, witb power to dispose of. tbe same *in such manner as to him shall seem*meet, for tbe payment of my just- debts and for tbe use and benefit of my only and afflicted daughter, Gertrude Besley, so long as she shall remain insane,” &c., is tbe language of tbe testator. It appears that there were no-debts of tbe testator remaining unsatisfied at tbe time of tbe death of tbe executor and trustee, James G. Besley, and consequently that all of tbe estate not then disposed of belonged to tbe fund thus specially bequeathed in trust. Gertrude Besley is still living and insane. Under these circumstances we have no bestitation in saying that tbe appellant, *Oliver*Besley, is not entitled to tbe possession of any part of the estate by virtue of bis appointment as administrator witb tbe will annexed. As such administrator be does not succeed to tbe rights and duties of James G. Besley as trustee under tbe will. The rule that-powers and duties thus confidentially reposed, and not connected witb tbe office of executor, do not pass to the administrator witb tbe will annexed, has been acted upon in cases too numerous to be quoted. *Conklin v. Egertons’*Adm’rs, 21 Wend., 430; *Knight v. Loomis,*30 Maine, 204; *Ross v. Barclay,*18 Pa. St., 179; *Dominick v. Michael,*4 Sandf., 374; *Beekman v. Bonsor,*23 N. Y., 303.

Nor has tbe statute (sec. 11, ch. 98, R. S.,) which provides that “ administrators with tbe will annexed shall have the same authority to perform every act, and discharge every trust, as tbe executor named in the will would have had, and their acts shall be as valid and effectual for every purpose,” changed tbe law upon this subject. Tbe acts and trusts here spoken of must be understood as those pertaining to tbe office of executor. Tbe same observation is applicable to those provisions of statute cited by counsel for the appellant. In New York there exists a like statutory provision, by which it is enacted that “in all cases where letters of administration witb the will annexed shall be granted, tbe will of the deceased shall be observed and performed ; and tbe administrators witb such wills shall have *456the same rights and powers, and be subject to the same duties, as if they had been named executors in such wills.” This statute has been held not to have introduced any new principle of law. *Beekman v. Bonsor,*and *Dominick v.*Michael, *supra.*

The suggestion of the appellant’s counsel that as, in this case, the bequest was made to.James G-. Besley, “sole executor of this my last will and testament,” it is distinguishable from the other cases, merits perhaps some observation. It will be found on examining the cases that in most, if not all of them, the same or an equivalent form of expression was used in the creation of special trusts. The terms “sole executor,” “executor aforesaid” or “ hereinafter named,” are regarded as descriptive of the person of the trustee, and not as implying that the testator intended to annex to the office of executor any powers or duties which by law do not belong to it.

Judgment affirmed.