Shaw, C. J.
This is an action of debt on a probate bond. [532] brought in the name and by the authority of the judge of probate, upon the application of the nephews and legatees of Roswell Crafts deceased, against Amos Russell and Horace Williams, the executors of said Roswell’s will, as principals, and Russell Cooley and Aaron Arms, as sureties on said bond. The case comes before the court upon an agreed statement of facts; and the question is, whether, to account for the estate of the testator, and pay over the same, is a joint duty of both executors, for the performance of which they and their sureties, by force of the probate bond, are responsible ; or whether under the circumstances, that duty has devolved on Amos Russell alone, as trustee, so that his co-executor and the sureties are discharged. The bond is in the usual form of an executor’s bond, conditioned to return an inventory, render an account, and administer the estate according to the will. The executors returned an inventory and rendered a joint account, charging themselves with the personal property of the testator.
It appears to us, very clearly, that by these proceedings, and by operation of law, the executors became responsible for the personal property of their testator, and that they must remain thus responsible until some legal discharge is shown. The counsel for Williams, the co-executor, maintains, in behalf of him and the sureties, that they aré so discharged by the fact agreed, namely, that the property went into the hands of Amos Russell; that he, as a trustee specially appointed by the will, was the proper person to take it and hold it, and that the executors are thereby exonerated.
The will, after giving the whole of the residue of the property to the five nephews, directs that this shall be subject to particular directions which he gives. He then goes on to appoint Amos Russell, one of the executors, a trustee of all his property, except so much as the executors will require to pay debts and expenses ; empowering said Russell, immediately after the testator’s decease, to take full possession of the same, and keep it at interest on security ; to apply the income of a part to the support of his mother, and, subject to that appropriation, to pay over the residue to said nephews, in [533] equal shares, as they shall respectively arrive at twenty one years of age.
Now it is argued, that as the testator had the jus disponendi, and did direct the property, immediately after his decease, to go into the exclusive possession of the trustee, it was rightly disposed of, according to the will, and the executors, as such, had no further control over it, and were no longer responsible for it. This argument is plausible; but we think it is fallacious, and founded on a misconception of the powers of the testator, and the relative rights and duties of an execiitor and a trustee. It is not legally correct, to say that a testator has the jus disponendi of his property; it is true only sub modo. The executor, as such, is bound to administer the whole estate, as well that not given by the will as that embraced in it. Hays V. Jackson, 6 Mass. 149. The first claim on the estate is that of creditors; and it cannot be known, until an inventory is returned and an account settled, whether the whole estate will not be necessary for the payment of debts. So children or their issue, who have no share given them, and posthumous children, are entitled to the same distributive shares which they would be entitled to if the estate were intestate. Rev. Sts. c. 62, § 21. These claims are paramount to those of legatees, and no disposing power of the testator can defeat them. To meet these claims, and enable the executors to perform the trust which the law devolves upon them, the whole property must, in the first instance, come to them, and be disposed of, in an orderly course of administration, which the testator cannot control. For this purpose, it is an established rule of law, that all the personal property of the testator vests in the executors, for some purposes, before probate of the will; but to all intents and purposes, upon its probate. This they take, not merely as donees, by force of the gift, as inter vivos, but by operation of the rules of law controlling, regulating and giving effect to wills. A trustee, therefore, who is but a legatee, can take only through the executors. If a testator were to appoint no executor, or direct that the estate should go immediately into the hands of legatees, or of [534] one or more trustees, for particular purposes, such direction would be nugatory and void ; and it being a will in which no executor is appointed, it would be the duty of the judge of probate to appoint an administrator with the will annexed, who would have all the powers of an executor, and in whom all the personal property would vest. Rev. Sts. c. 63, $ 1.
Being of opinion that, by this will and the acts done under it, the executors became jointly possessed of the personal property, and responsible for it, we are then to consider, whether the taking of it, by one of them, who was also sole trustee, under the circumstances stated, discharges the executors.
When the executors and the trustees are different persons, there is no difficulty; nothing but an actual payment to the trustees, by the executors, will discharge them. So if the trust is cast upon them as executors, the execution of such trust is a duty superadded to their official duties as executors, and until they qualify themselves, and assume to act in their separate capacity, as trustees, the bond to perform their duties, as executors, binds themselves and their sureties to the execution of such trust. Hall v. Cushing, 9 Pick. 395. Dorr v. Wainwright, 13 Pick. 328. Towne v. Ammidown, 20 Pick. 535. What would amount to such change of capacity, when the same persons are executors and trustees, so as to exonerate the sureties on the executorship bond, would depend on circumstances. If, by the constitution of the trust, they were exempted from giving bonds, as they may be, (Rev. Sts. c. 69, § 2,) it would probably be held sufficient — as no actual payment can be made to one’s self — to show, by any authoritative and notorious act, that they had elected to act in the capacity of trustees; as for instance, if they claim a credit in their executorship account, filed in the probate office, for a sum, held by themselves as trustees, and also file an inventory or account, charging themselves with the like sum as trustees. 9 Pick, ubi sup. But, when a bond to the judge of probate is required, such transmutation of the property cannot be complete, so as to discharge the executors, until such [535] bond has been given. Rev. Sts. c. 69, § 1. And we think the same rule applies when one of the executors is himself trustee. Such charge in the one capacity, and claim to be discharged in the other, would avail, if no bond were required. But it is a general rule, applicable to this in common with other cases, that executors must see, at their peril, that they pay legacies to persons legally authorized to receive them, anc that a literal compliance with the directions of a will is not in all cases, sufficient. Suppose legacies to persons named who are found to be infants, persons under guardianship, as non compos, or spendthrift; a payment to the infant, non compos, or spendthrift, would be no valid discharge. So if a legacy be to a man and his heirs, and the legatee die, after the testator, and before payment; a payment to the heir would not be legal; it must be to the personal representative. So we think payment to one named as trustee, but not qualified to act as such, would be no valid payment. He may have declined or resigned the trust, or neglected, on notice, to give bond; by which he shall be considered as having declined ; or he may have been removed. Rev. Sts. c. 69, §§ 4, 7. In any of these cases, a payment to the trustee named in the will would be a payment by the executors in their own wrong, and no valid discharge. What would be sufficient proof of the qualification of a trustee, is not now in question ; probably a commission or certificate from the probate court would be a sufficient warrant. But, in the present case, the trustee could not be qualified without giving bond; being within none of the exemptions in Rev. Sts. c. 69, §§ 2,3; and being himself one of the joint executors, his knowledge of the fact was constructive notice to his co-executor. Besides,• even if it were a case where the trustee was exempted by law from giving bond, the result would be the same; because here was no authoritative and notorious act done by the executors, indicating an intent to discharge themselves as such, by placing the property in charge of the trustee ; and no similar act on the part of the trustee named, indicating an intent to assume such trust.
[536] The court are therefore of opinion, that the executors are jointly liable for the balance of the personal property of the testator, which, it appears by the accounts, has come to their hands, and not been paid over.
We think the judgment, in the present case, requires some particular attention; the more so, as we think the revised statutes have introduced some changes of the law in this re spect, and at least have given much more precision and exactness to the law and practice in regard to the judgment and other proceedings, in suits on probate bonds.
By the former statutes, certain creditors and distributees were authorized to bring suit, for their own benefit, on the probate bond, in which, after a judgment for the whole penalty for the judge of probate, such persons had an award of execution to their own use. In other cases, judgment was rendered generally for the judge of probate, for the benefit of all concerned. It might be doubtful, perhaps, upon the law as it stood, whether a legatee, whose right was not ascertained by a judgment, could have a suit on the bond to his own use. In some cases, it was implied, from the decisions of the court, that such suit could be maintained, after demand of the executor and refusal of payment. Paine v. Gill, 13 Mass. 365. Prescott v. Parker, 14 Mass. 428. But the directions of the Rev. Sts. c. 70, are clear and explicit, and are fully explained by the report of the commissioners for making that revision There are three cases, and three only, in which a person may sue the probate bond for his own benefit, without application to the judge, making a special indorsement thereof on the writ, and have a special award of execution to his own use. 1. A creditor of a solvent estate, who has a judgment against the executor. 2. A creditor of an .insolvent estate, for his share, after a decree of distribution. 3. A person next of kin and distributee of an intestate estate, after a decree of distri bution in his favor. In each case, the party so suing must have demanded the amount of the executor or administrator, and he must have refused or neglected to pay. Rev. Sts. c. 70, §§ 3, 4, 5, 10. In all these cases, it will be perceived [537] that the right of the claimant is liquidated and ascertained by matter of record,- amounting to a conclusive judgment between the parties, and that nothing remains but payment. These cases exclude that of a legacy. And why should it not be excluded ? Though it be a pecuniary legacy, and a sum certain, yet the executor may not be bound to pay it. There may be no assets for its payment, and so it must fail ; or no assets to pay all legacies of the same class, and so it must abate in proportion. Besides ; the legatee, like all other claimants, has his remedy by action, and, if there be no defence, must have judgment for his legacy.
But to proceed: The Rev. Sts. c. 70, § 6, provide that when it shall appear to the judge of probate, on the representation of any person interested in the estate of a deceased person, that the executor or administrator has failed to perform his duty, in any other particular than that of failing to pay a creditor or next of kin having a judgment or decree, he “ may authorize any creditor, next of kin, legatee, or other person aggrieved by such maladministration, to bring an action on the bond.” Here, it will be perceived, legatees are enumerated among those who have claims on the estate, and not .those who have a right to sue the bond for their own benefit.
It is also to be noted, that in case of a suit brought generally, in the name of the judge of probate, the writ is to be indorsed by those at whose request it is brought; and in case of costs for the defendant, judgment shall be entered for such costs against such indorser, and not against the judge of probate ; which, it is believed, is a change, of the former law. Rev. Sts. c. 70, § 7.
But the most material provision is in the third and fourth subdivisions of § 10, namely, that in case of such suit for the general benefit, execution shall be awarded in the name of the plaintiff, the judge of probate, without expressing that it is for the use of any other person. Sect. 11 provides that “ all moneys received on any execution issued as aforesaid, (unless the execution be awarded for the use of a creditor or person next of kin, as provided for in the first and second subii[538] visions of the preceding section,) shall be paid over to the co-executor or co-administrator, if there be any, or to whoever shall then be the rightful executor or administrator, and shall be assets in his hands, to be administered according to law ” This, perhaps, requires a little elucidation ; but it is fully explained by the commissioners, in their report, in the notes on c. 70. Generally, it is true, maladministration which constitutes a breach of the bond will disqualify the same administrator from holding his office and proceeding in the settlement of the estate. But as separate bonds may have been given, (Rev. Sts. c. 70, § 2,) there may be a co-executor or co-administrator not implicated, who may fitly take the assets and settle the estate. And it may be that the breach of the bond may be of such a nature as not to implicate the integrity of the executor, or his fitness to administer the estate, but on which a suit was brought to settle some question of right; in which case, if he will submit to the judgment, and charge himself with the amount, the purpose of the suit will be accomplished, and the assets may be again committed to him. But, in general, the refusal to account, the waste of the estate, or other maladministration, which constitutes the breach of the bond, and which will be disclosed in the suit, resulting in a judgment against the executor or administrator, on his bond, will show that he has become evidently unsuitable for the further discharge of the trust, and it will be the duty, as it is within the power, of the judge of probate, to remove him, and appoint an administrator de bonis non, and with the will annexed if it be the case of an executor removed. Rev. Sts. c. 63, § 7, and c. 68, § 25. Thus there must, in every case, be an administrator, duly qualified, and above exception, to take the proceeds of the judgment — either directly from the debtors, if paid voluntarily, or from the officer charged with the service of the execution — to be administered as assets.
Taken together, these provisions constitute a plain, practical and harmonious system, easy to be applied, in which each direction conforms to and harmonizes with every other. The judge of probate, who, as the obligee in the bond, is a [539] necessary party, is yet an official and formal party only. He is in no case subject to costs. He can in no case receive the money himself, and in no case can he be required, or has he any authority, to direct the appropriation or distribution of the proceeds of such judgment. On the contrary, they are to be paid to a rightful administrator, and shall be assets in his hands, to be administered according to law. The law, then, directs the appropriation, and adapts it to every variety ol claim which can exist. Creditors, legatees, next of kin, persons having derivative or conditional claims, under trusts or otherwise, will take these assets, under a due course of administration, according to their respective legal priorities, and in their due shares and proportions.
In this case, if it has not been already done, the judge of probate will probably think it expedient to remove the executors, and appoint an administrator de bonis non, with the will annexed, to whom the proceeds of this judgment will be committed. After the payment of debts, if any, and expenses, he will pay the residue to a trustee, to hold under the trusts expressed in the will, namely, to keep the amount at interest, on good security, to appropriate a portion of the income to the support of the mother, if living, and, subject to that appropriation, to pay over the amount, in equal shares, to the five nephews, as they have already, or may hereafter, respectively, come of age. If the trustee named is a suitable person, and will give satisfactory bonds, we see not why he may not be that trustee, according to the appointment of the testator. But if, as is more probable, he shall fail to give such bond, when required, or shall be incapable of discharging the trust, or evidently unsuitable therefor, in the judgment of the judge of probate, then, after due notice to the trustee and all others interested, he will remove him, and appoint another in his stead. Rev. Sts. c. 69, §§ 4, 7.
But the only entry now to be made will be substantially as follows, to be put into due form: That the plaintiff, the judge of probate, have judgment for the sum of three thousand dollars, the penalty of the bond, and that execution be awarded [540] for said plaintiff, for part of said sum, to wit, for the sum of $ , and costs of suit, taxed at $
The sum, for which execution is to issue, is that for which the executors are liable, and is to be ascertained by a hearing in chancery, if not already adjusted.