#### Joseph Hall, Judge, &c. *versus*Thomas Cushing and John Mackay.

Where a statute directs a bond to be given for a special purpose, it seems that any thing added in the condition, which is not required by the statute, is not binding on the obligor.

A statute prescribes the form of a bond to be given by administrators to the judge of probate; another statute requires executors “ to give bond in the same manner administrators are by law obliged to be bound.” *Held,*that it is not necessary for the bond given by an executor to be in precisely the same form as the bond required of an administrator, but that it may and ought to vary as the duties of an executor vary from those of an administrator.

The condition of the statutory bond of administrators requires them to “ admmistet according to law.” The condition of a bond taken of an executor, which required him to “administer according’to the will,” was *held*to be conformable to the statute.

*Held*also, that the effect of the bond would have been the same, if the words had been “ administer according to law,” the law requiring the executor to administei according to the will.

A testator gave the residue of his personal estate to his minor children, and directed his executor “ to invest his personal estate in public funds,” and to “apply the income thereof to the maintenance and education of his children during their minority,” and to pay them their shares, part when they should be twenty-one, and part when they should be twenty-four years of age. The executor gave the usual bond. In an action on the bond against the executor and his sureties, a general performance was pleaded, and the plaintiff, after the will had been enrolled, replied, assigning as a breach of the bond, that the executor did not invest the personal estate in public funds according to the directions of the will. On demurrer, *held,*that it was the duty of the executor to invest the personal property; and that the replication set out a sufficient breach of the bond.

The investing of the money in the funds and dividing it among the children at the times mentioned in the will were duties incumbent on the executor as such, and would have been so on an administrator with the will annexed.

If any person had been appointed trustee for the maintenance and education of the children, his right over the property would have only extended to the income of the funds, the executor having the right to retain the funds, to divide among the children as they should become entitled to their shares.

An executor, who is also trustee under the will, cannot be considered as holding any part of the assets in the latter capacity, until he has settled an account at the probate office as executor, in which he is credited as executor with the amount which he holds as trustee.

Such an account ought not to be passed by the judge of probate without first requiring bonds from the party as trustee.

This was an action of debt on a probate bond, given by Thomas Cushing as principal, and Mackay as surety, to the judge of probate of Suffolk; and was brought on behalf of Experience S. H. Freeman,1 daughter and legatee of Watson *403Freeman. On oyer it appeared to be an executor’s bond ip common form, conditioned that Cushing, the executor of the will of Watson Freeman, should make and return under oath an inventory of the goods, chattels, rights and credits of the deceased which had or should come into his hands, and the same goods, chattels, rights and credits should “ well and truly administer according to said willand should render an account within a year. After oyer of the condition, the defendant Mackay, who alone appeared, pleaded a general performance of the condition of the bond.

The plaintiff then prayed that the will mentioned in the condition of the bond should be enrolled, which was accordingly done. The will gives the testator’s personal estate to his five children, Watson Freeman, Mary Ann Freeman, Charlotte Freeman, Benjamin Freeman and Experience S. H. Freeman, to be apportioned and disposed of as therein after directed. It then provides, that in consideration of the greater expense which the education of his sons will require, they shall each receive one thousand dollars more than their sisters. It then continues, “And I will and direct, that all the residue of my personal estate shall be distributed in equal portions among all my children above mentioned, and I do hereby request and direct the executors of this my last will and testament to dispose and invest my personal estate in public funds in the most secure and advantageous manner, and to appropriate and apply the income thereof to the maintenance and education of my said children during their minority, according to the apportionment above made, and to pay to each of my said sons his respective share of my personal estate on the day whereon he may attain the age of twenty-one years, and to each of my daughters one moiety of her respective share when she shall nave attainen the age of twenty-one years, and the other moiety when she shall have attained the age of twenty-four years.” In case of any son or daughter marrying before he or she is twenty-one years old, one half of his or her portion is directed to be paid on the day of marriage.

The will left no other legacies, ard appointed Cushing and three other persons executors.

The testate' also gave his real estate “ to be divided ana *404apportioned among” his children in equal shares, *u*ano to be disposed of and distributed and delivered to them severally in like manner ” as his personal estate ; and directed his “ executors to appropriate the income of his said real estate equally among his said children for their maintenance and education ; ” and provided, that in case the income of the real and personal estate was more than sufficient for the purpose, the excess should be added to the principal and vested in the same manner as the personal estate ; but if “ the avails ” of the real and personal estate are insufficient, he directs his executors to sell so much of his real estate as they shall judge sufficient for the purpose. He also authorizes the executors to sell any part of his real estate and invest it in funds, if they think it will be advantageous to his children.

The plaintiff replied, that Cushing, having in his capacity of executor received a large sum of money as assets of the testator, to wit, twenty thousand dollars, which remained in his hands after the payment of all debts and charges of settling. the estate, while he was executor, and during the minority of the children, “ did not dispose and invest the personal estate of said Watson Freeman, his testator as aforesaid, in public funds according to the directions of the said will, but refused and neglected so to do, contrary to the form and effect of the condition of said writing obligatory ; and this he is ready to verify.”

To this replication there was a general demurrer and joinder.

The case was argued first at the bar and afterwards in writing.

*Sohier,*for the defendant.

1. It was not the duty of the executor, in that capacity, to invest moneys which came to his hands in the course of administration. The duties of an executor are to collect the personal estate of his testator, convert it into money, pay debts, legacies and charges, and distribute the residue according to the will. Off. Exec. 186. If the executor is residuary legatee, as he was in this case in trust for the benefit of the children, his duties as executor terminate by the payment of the debts. The residue was held by Cushing as trustee, not as executor, and it was as trustee that he was bound to invest it, and is chargeable with it if he has not in-*405rested it. The executor’s account, which is required by the bond, should show the settlement of the estate. In an account properly stated by Cushing, he would be debited with the estate which came to his hands, and he should have a credit for debts &c. paid, and the balance which, as trustee, he was to take and invest. Such a credit would have been proper, and, if allowed, would not his account as executor have been closed ? If at the instant when such an account was rendeied, no one had a right to demand and take the balance of Cushing, could a right to demand it of him afterwards as executor exist ? Cushing then had the right to retain this balance, and the exercise of this right finished his account as executor. The breach assigned then, being the omission to do an act which a trustee should perform, and which is not included in the duties of an executor, is not a breach of the probate bond. If it was the duty of the executor, as such, to invest, then it was also his duty to invest rents, and the price of real estate, if sold, as the will directed such investments ; and if the neglect of his duty in the former case renders his sureties on this bond liable for the benefit of the *cestui que trust,*why not in the latter ?

2. Even if it was the duty of the executor to make the investment, the neglect of that duty was not a breach of the condition of the probate bond. The only provision in the condition that can relate to this point is, that the executor shall administer the goods of the testator “ according to said will.” This varies from an administration bond only in using the words “ *to said will,”*instead of “ to law.” The only effect of this tihange is, that the executor is bound, in the disposition of the residue, to regard the will, instead of the statute of distributions. If so, then as this residue rested in the executor, by the testator’s appointment, as soon as the debts were paid, it arrived at its destination and was well and truly administered. The retaining of the estate by the executor is equivalent to a transfer to, and receipt of the money by a trustee ; and the act of investing not being to be performed, until the trustee has obtained the control of the trust premises, cannot be regarded as comprehended in the term “ *administer,”*as used in the bond.

3. If the neglect to invest is a breach of the condition of the *406bond, still the surety is not liable. This is a statutory bond The statute of 1783, c. 36, § 8, prescribed the form of the bond to be given by administrators ; and executors were required “ to give bond in the same manner administrators are by law obliged to be bound.” *St.*1783, c. 24, § 17. If the bond in this case go beyond the law, it is void entirely, or, at least, so far as it goes beyond the requisitions of the statute. The expression in the administrator’s bond, “ administer according tó law,” means only collecting the property, paying the debts, and disposing of the residue of the property by a transfer to the next of kin or others' who are to receive it; "f “ administer according to the will ” means more than this, and makes it the duty of the executor to become the legal owner of the property, to accomplish the particular purposes of the testator, then, for this additional duty, the law has required no security by the bond mentioned in the statute.

*Shaw,*for the plaintiff.

When the statute of 1783, c. 24, § 17, provided that executors should be bound in the same manner as administrators are by law obliged to be bound, the only act regulating administrators’ bonds was the Provincial act of 4 *Wm. & Mary,*Col. & Prov. Laws, 230. This statute provided, that the judge of probate should take bond with sureties of administrators in the manner directed by *St.*22 *&*23 *Car.*2, c. 10. The form of bond given by this English statute is to be found in Bac. Abr. *Executors, &c. E,*11. It is substantially the same as the form now used in this State; *St.*1817, c. 190, § 14 : and as that prescribed by *St.*1783, c. 36, § 8, which was in *force when*the bond now in question was given. The form prescribed in each of these acts applies strictly to the case of an administrator of an intestate estate. When, therefore, the statute says that an executor shall be bound as an administrator, the provision is to be construed according to the rule, *mutatis mutandis,*a rule particularly applicable where forms are prescribed to be applied to various things. Such too has been the legislative construction of the provision Thus the statute of 1786, c. 55, § 2, after directing the proceedings in a suit on an administrator’s bond, adds, “ the like judgment and proceedings, so far as they can with propriety take place, are to be had upon bonds of executors *407guardians, and others.” The 4th section of the same act provides, “that all bonds given in the Supreme Court of Probate, by executors, administrators, or guardians, for the faithful discharge of their respective trusts, shall be to the Commonwealth,” “ for the use and benefit of the creditors, heirs, leg atees, or wards, as the nature of the bond shall require.” The bond to be given by the executor is intended to secure the faithful performance of his duty as executor. This duty is to collect the property, and after payment of the debts, to pay over, distribute, invest, appropriate, and apply the assets, according to the directions of the will; and such is the legal effect of the obligation to administer according to the will ; the reference to the will having the same legal effect as if it was recited at large.

Such being the legal effect of the bonds, the replication sets forth a sufficient breach. It alleges that Cushing, having funds to a large amount in his hands, after payment of the debts, had not invested them according to the direction of the will, which direction is plain and explicit. This is a clear breach of his official duty, for neither the will nor the law points out any other mode by which he could discharge himself of his liability for these assets except by investing them in the mode directed by the will.

In *Farwell*v. Jacobs, 4 Mass. R. 634, a direction in a will to support the testator’s father, was held to be a direction which the executor, as such, was bound to obey, and an official duty which devolved on an administrator *cum testamento annexo.*The performance therefore was secured by the official bond of each. In the present case there was no personal trust; the direction was general to any person having the execution of the will, and the trust would have devolved on an administrator *cum testamento annexo.*

In *Sanderson*v. *Stearns,*6 Mass. R. 37, it was held, that on a bequest to one for life, of a sum of money, with remainder over, it was the duty of the executor to place the money out, and keep it in stock during the life of the first legatee, and then pay it over. The Court say, that this trust devolves on “the executor named in the will, or any person who may become by law intrusted with the execution of it.” This case *408has been cited with approbation in New Hampshire *Claggett*v. Hardy, 3 N. Hamp. R. 147. See also *Prescott*v. *Pitts,*9 Mass. R. 376.

Cushing was not a trustee under the will, within the statute of 1810, c. 86, for the executors are not called trustees, nor was the estate left to them in trust. On the contrary, the property is left directly to the children, not to the executors. But if he can be considered as constituted trustee within that statute, still he must be considered, even under that statute, as having declined the trust, in consequence of not having given bonds as trustee, and therefore he is still liable as executor.

If it be contended, that he was exempted from giving a bond, under a clause in statute 1817, c. 190, § 37, as a trustee who had previously entered on his trust without giving bonds, it is answered, 1. That he had not entered on the execution of the trust, for the trust, if it existed at all, was of such a nature that the giving of the bond was the preliminary step in ascertaining the trust; and 2. That there was a breach of his bond as executor before that act was passed, from which the act could not shield him.

Again, if the testator did constitute any trustees by his will, it was the four persons named as executors, not Cushing alone. The declining of the other three to act as executors was not a renunciation of their powers as trustees ; and Cushing could only discharge himself from his duty as executor, by placing the funds under the control of all four. If the persons named as executors were thereby constituted trustees under the statute, and if their refusing to act as executors was a renunciation of the trust, then, according to the statute, other trustees must have been appointed in their place by the judge of probate. The rights of the four as special trustees could not have vested in Cushing alone. There is reason for this distinction between executors and trustees, for where there are two or more executors, each one separately may do any act which all could do as executors, but in the case of two or more trustees all must join in every official act. *Shipbrooke*v. *Hinchinbrooke,*16 Ves. 477 ; S. *C.*11 Ves. 252.

The following cases were cited to show what are considered the official duties and liabilities of executors. *Holland*v *409*Hughes,*3 Meriv. 685 ; *Vigrass*v. *Binfield,*3 Maddock, 62; *Griffith*v. Frazier, 8 Cranch, 9 ; *Blake*v. *Blake,*2 Sch. & Lefr. 26 ; Hall v. *Hallet,*1 Cox, 134 ; *Doyle*v. *Blake,*2 Sch. & Lefr. 229 ; Powell on Devises, 290 *et seq.; Mabank*v. *Metcalf,*3 Atk. 95; *Mulvany*v. *Dillon,*4 Ball & Beatty, 414.

Where executors were directed in the will to invest property, they were, held responsible for interest. *Forbes*v. *Ross,*2 Cox, 113.

Where an executor as such was ordered by the will to invest money in particular securities until legatees came of age, he was held liable as such executor for non-compliance. *Fletcher*v. *Walker,*3 Maddock, 73.

A legatee in New York and England may require an executor to pay money in his hands into court, or to give security, when the legacy is payable at a future day. *Lupton*v. *Lupton,*2 Johns. Ch. R. 627, and English authorities there eked.

*Sohier,*in reply.

It is beyond question that the same person may be executor of a will, and become trustee by the annexation of some trust, aside from the general purposes of administration, to the office of executor. The plaintiff has not shown the limits of these two offices, where the executor may say his concern with the testator’s estate ends, and the interest of the trustee commences. It is believed that the act of investing in the present case is not included among the duties of an executor as such, but belongs to the office of a trustee, to whom the testator has given special powers. The cases in the Massachusetts Reports, cited by the plaintiff, will not be found to have their origin in the neglect, by executors, of duties similar to that for the omission of which this suit is brought. The investing of the funds was a personal trust, not an official duty of the executor. To a trust of this kind an administrator *cum testamento annexo*would not succeed. *Moody*v. *Vandyke,*4 Binney, 31.

In England, until the statutes of 21 *H.*8, e. 5, and 22 *$/•*23 *Car.*2, c. 10, bonds were not required of administrators. Executors in that country have never been required to give bonds. The English cases cited by the plaintiff do not show *410the line of distinction between an executor and an executor-trustee. In fact, no distinction is necessary where the same person is alone answerable for his own acts and defaults. When, the same person is to be charged, it would be immaterial whether he would be liable as executor or executor-trustee.

A clear distinction, however, exists between the two offices, both in the quality of the title in the property held by virtue of them, and in the acts necessary for a faithful performance of them. This difference is admitted in *Wyman*v. Hubbard, 13 Mass. R. 233 ; and made the basis of a decree in *Byrchad*v. Bradford, 6 Maddock, 240.

The union of the two offices of executor and trustee in the same person would not impede the due execution of each. When it became the duty of the executor to render up the residue, it was the duty of the trustee to accept it; and Cushing having the right, and it being his duty, to retain the funds, the property would be changed by mere act and operation of law. *Taylor*v. Deblois, 4 Mason, 131. No evidence of election is required, because it was the duty of the executor to transfer the residue to the trustee, and the observance of this duty is presumed.

The-trust was annexed and confined to the office of executor ; and as the whole office of executor vested in one of the persons named as executors in the will, this acting executor was in the condition of a survivor, as to the exercise of the powers conferred upon the four. If so, then Cushing became sole trustee. *Zebach*v. Smith, 3 Binney, 69 ; *Jones*v. *Maffet,*5 Serg. & Rawle, 523.

It is not admitted that the expression “administer according to the will,” in the probate bond, has the same effect as if the will was recited at large. Administering, as intended in the grant of administration, does not mean, holding, improving, and managing the assets for profit or increase ; but merely the disposition of them according to the will, to be made when the claims of creditors are satisfied. It is intended that debts should be secured, by the bond, as in cases of intestacy, and that the excess of assets, if any, should go in safety to those substituted by the will for the next of kin. The statute could not mean, in requiring executors to give bond in the same mari*411ner as administrators, to permit each judge of probate to prescribe a form of bond for executors, by which, in the judge’s opinion, the accomplishment by the executor, of all the directions of the testator, be the objects what they might, should be insured.

Wilde J.

delivered the opinion of the Court. The defendants contend that the breach assigned in the replication is not sufficient in law to maintain the action.

The will directs the executors to dispose of and invest the personal estate in public funds, in the most secure and advantageous manner, and to appropriate and apply the income thereof to the maintenance and education of the testator’s children, during their minority, and afterwards to distribute the property among them in equal shares.

If this were an action on a bond at common law, the breach undoubtedly would be considered well assigned ; it being sufficiently precise and particular, and in the words of the condition ; but in an action on a probate bond the plaintiff cannot be entitled to judgment, unless the bond is conformable to the statute in all its material parts, and if more be added than the law requires, although it will not vitiate the whole bond, unless the matter be illegal, yet no breach can be assigned in any part of the condition not included within the requisitions of the statute ;1 and the defendant’s counsel contend, that the breach is assigned in that part of the condition which was not required by the statute, and is therefore immaterial. By the *St.*1783, c. 36, the form of an administrator’s bond is prescribed, and executors are required to give bond in the same manner as administrators. But the statute does not require that the form of the bond shall be precisely similar ; and it cannot be so construed, without involving the absurdity of reqiring the same acts to be performed by executors and administrators, although it is admitted that in one particular at least, namely, the distribution of the assets, their duties are variant and repugnant. And so far as they are thus variant, the forms of their bonds *412may and ought to var) But this formal objection is not con sidered as very important, since, if the plaintiff is right as to t}je principal point, he would be entitled to judgment, although the condition of the bond were precisely similar to the form prescribed for administrators; for if under the directions of this will it was the duty of the executor to invest the testator’s personal estate, and he failed so to do, it would be immaterial whether the bond were given in its present form, or in the term prescribed for administrators ; for whether he was bound to administer the estate according to law, or according to the will, the legal effect would be the same ; provided the law required the executor to perform the directions of the will; and if he was not thus bound, then clearly the breach now assigned is immaterial and insufficient.

The great question, therefore, is, whether the executor was bound to invest the personal property as directed in the will, by virtue of his office as executor ; or whether this direction, from its nature, does not involve a trust superadded to the legal duties of an executor, and for the non-performance of which the defendant as surety is not responsible.

The defendants’ counsel contend, “that the office of executor, (so far as the law furnishes other security than the personal responsibility of the executor for the faithful performance of its duties,) consists in the care of the funeral, in the probate of the will, in the payment of debts and the payment of or assent to legacies; and ceases when the residue is paid over to the legatees, or a transmutation of property is effected by the act of the executor, or by the operation of law.”

We think, however, very clearly, that" the duties of an executor are not confined within such narrow limits. There are other important duties which devolve upon him, the performance of which is intended to be secured by his official bond. He is required to keep the property of the testator, while remaining in his hands as assets, without suffering it to be wasted and to account for it under oath, when cited by the probate court for that purpose ; and if he fails in either of these particulars, it will amount to unfaithful administration and a forfeiture of his bond. Or if he neglects to object to claims against the estate, which cannot be recovered by law ; as in the case of *413*Parsons*v. *Mills,*1 Mass. R. 431, and 2 Mass. R. SO; or if judgment be recovered against him on a suggestion of waste, the judgment creditor will be entitled to a remedy against him on his probate bond. *Fay*v. *Bradley,*I Pick. 194.

So also where an annuity was devised, and the executor was authorized to sell lands sufficient to raise a fund for the payment of the annuity, and he failed so to do, it was held to be an unfaithful administration, and a breach of the condition of his administration bond. *Prescott*v. *Pitts,*9 Mass. R. 376. And generally the executor is bound to comply with the directions of the will, so far as they may relate to the administration of the estate, and may be beneficial to the assets while in his possession for that purpose ; and a neglect so to do would be an unfaithful administration of the estate, for which he and his sureties in the bond would be responsible.

The question then recurs, whether the direction to invest the personal property is such a direction as relates to the administration of the estate, and is binding on the executor.

In the case of *Forbes*v. *Ross,*2 Bro. Ch. Rep. 430, it was decided, that where an executor was directed to lend a sum of money at the best interest, which at the time of the testator’s death was outstanding at four per cent, and the executor suffered it so to continue, he should be personally liable to pay five per cent.

And in the case of *Raphael*v. *Boehm,*11 Ves. 92, the executor having failed to accumulate the interest, by investment in the public funds for that purpose, in compliance with the direction in the will, he was held liable to be charged with interest; and the same principle was laid down in the case of *Dornford*v. *Dornford,*12 Ves. 127. These and many other similar cases are grounded on the principle, that such directions, being beneficial to the estate by enlarging the assets, are binding on the executor ; and that a failure of compliance on his part is a breach of his official duty. And his duty is the same, whether he is bound to give security for its performance or not.

The cases cited to show that a court of chancery will direct the assets to be invested, when the interests of all concerned require it, are supposed by the defendants’ counsel not to be applicable to the present question. We think, however, they *414have considerable bearing ; for they show that such a direction 'n the course of administration is proper ; and there seems to be no good reason why a similar direction in the will should not be binding on the executor, or administrator *cum testamento annexo.*Such a direction may be reasonable, and in many cases must be highly important to the interests of the legatees. The estate may be large, and may long remain in the hands of the executor, before the administration can be brought to a close. Four years are allowed to creditors to bring in their claims , and these may be litigated, and cause still further delay in the final settlement of the estate. Legacies may be made payable at a remote period, which is frequently the case when the legatees are minors, as was the case in the present instance.

Under all or any of these circumstances, to allow the assets to remain unproductive in the hands of the executor, would be exceedingly unreasonable ; we see no reason why the direction in the will, intended, no doubt, to guard against such an abuse of trust by the executor, should not be complied with.

It has been questioned, whether, if the executor should invest the assets in the public funds, he would not be held answerable for any loss which might happen by the fall of stocks. But it is clearly settled, that the executor cannot be prejudiced in this manner. Either the legatees must receive the stock, or if it be disposed of at a loss, the loss will fall on the residuary legatee. Toller, 427. And so it is, where an executor or administrator invests the assets in public funds without directions, provided he acts with good faith and reasonable discretion. And, *a*fortiori, he is not to be subjected to any loss, when he acts in compliance with the express direction of the will. In the present case the executors are directed to dispose of and invest the testator’s personal estate in the public funds, and to appropriate and apply the income thereof to the maintenance and education of his children during their minority. The intention obviously was, that the investment should be made without delay, for the income is appropriated to the maintenance and education of the children ; it is, therefore, a stronger case than those where investments are ordered for the purpose of accumulation merely. The object was to convert the personal estate into stocks, the income of *415which was to be immediately appropriated ; and this object could be accomplished by no one but the executors, or the person intrusted with the administration, according to the will.

The direction in the will, so far as it relates to the investment of the assets, did not devolve any special personal trust on the executors. They were not bound, perhaps, to superintend the education of the children ; or if they were, this would be a personal confidential trust, not appertaining to the office of executor, or that of administrator *cum testamento annexo.*But the direction to invest was intended for the security and productive value of the assets, and would be binding on any one intrusted with the execution of the will. *Prescott*v. Pitts, 9 Mass. R. 376 ; *Saunderson*v. Stearns, 6 Mass. R. 37 We think, therefore, that the executor was bound to invest the proceeds of the sale of the personal property ; and without waiting for the settlement of the estate : reserving, however, and keeping on hand, such a sum as the exigency of the testator’s concerns might require ; as to which he was to exercise his best discretion. But he was not allowed to suffer a large sum to lie idle in his hands, and much less to mingle it with his own funds, thereby exposing it to the hazards of-trade. This was unfaithful administration, and a violation of his official duty, for the security against which the bond in suit was given, and for any breach in the condition of which the principal and surety are alike liable.

This being the opinion of the Court, it becomes unnecessary to consider the other questions in the case, which have been so fully and ably argued by counsel. These questions may become important on a hearing in chancery, but they are not in issue by the present pleadings. It is true they have some bearing on the question now to be adjudged, and when fully weighed and considered, they will be found to support and fortify the opinion already given. It has been argued, that when the testator’s debts were all paid, the duties of the executor terminated ; and that, thereupon, by operation of law, there was a transmutation of property in the assets to the executor, in his capacity as trustee to the minor children. This trust, however, was confined to the support and education of the children, and the income of the funds was alone appropriated for these pur*416poses. The executor had a right to retain the funds for the purpose of distributing them among the children, when they should respectively become of age. If another person, therefore, had been appointed trustee, he could only have a right to demand the income of the funds from the executor.

And again, before there could be any transmutation of property, as contended for by the defendants’ counsel,- the executor must have settled his final account of administration in the court of probate, in which the balance due from him as executor should be allowed to his credit, as being retained by him in his capacity as trustee for the minor children. And such an allowance would not, it is to be presumed, be made by the judge of probate, without first requiring him to give bond for the faithful performance of his duties as trustee. The case of *Wyman*v. *Hubbard,*13 Mass. R. 230, may be considered, perhaps, as somewhat opposed to this reasoning ; but nothing in opposition was expressly decided in that case. The only question was, whether the executor was chargeable for interest, and the Court was of opinion that he was not; but the facts are not fully stated, and probably the point now under consideration was not much discussed ; certainly it was not decided. Nor is it necessary, as before remarked, to decide it now. The only question now to be determined is, whether it was the duty of the executor to invest the assets according to the directions of the will; and we are of opinion that it was.1

But we must not be understood as deciding that the circumstances of the estate might not be such as to excuse the executor in omitting to make an investment. The assets may have been inconsiderable ; or it may have been thought necessary to retain them for the payment of debts. Under such circumstances the executor must act according to his best discretion ; and his proceedings will always be entitled to a favorable construction. But if any such circumstances existed in this case, they should have been pleaded. As the pleadings now stand, we are of opinion that the plaintiff is entitled to judgment for the penalty.

1

 Official bonds, when not conformable to the statute that requires them, though they may be good at common law, can be enforced only according to the rules of the common law. See *Branch*v. *Elliott,*3 Devereux, 86; *Justices*v. *Armstrong,*3 Devereux, 286; *Miller*v. *Commissioners,*1 Hammond, 271, *Governor*v. Twilty, 1 Devereux, 153.

1

*Dorr*v. *Wainwright,*13 Pick. 328; Town; v. *Ammidon,*20 Pick. 539, 540 *Claggetl*v. *Hardy,*3 Pick. 148.