• Thompson, J.
The questions arising on this appeal grow out of the action of the circuit court in sustaining objections to the final settlement . of appellant as executor of the estate of Henry C. Young, deceased, which' objections were made by Belle Young, the widow, and Gtrabell and Robert Young, two of his heirs. The executor paid Henry C. Young, Jr., one of the children of the deceased and also a distributee under the will, the sum of $300, for which he claimed credit in the order of the distribution made on the final settlement. This money was paid without an order of distribution. The respondents objected to it.
The facts concerning the only other item of dispute may be thus stated: At the death of the testator the .executor was indebted to him in the sum of $600 with [329]*329some accrued interest.. The indebtedness was then due, and was represented by two promissory notes bearing interest at the rate of ten per cent, per annum. The -executor inventoried the notes as notes., and in his final settlement charged himself with the principal sum and interest thereon at the-rate of ten per cent, to the date ■of the inventory, to-wit, April 6, 1886. The final settlement was approved by the probate court on August 81, 1889, and the respondents insisted that the executor should be charged with interest on the notes to that ■date. The probate court overruled both objections and approved the final settlement. On appeal to the circuit court both objections were sustained and the final settlement reconstructed in accordance therewith; and from that judgment the executor has appealed, and he insists that the judgment, of the circuit court is wrong on both propositions. We will discuss the question of interest first.
Section 98, Revised Statutes, 1889, reads: “ All debts due by an administrator to his testator or intestate shall be considered as assets in his hands.” The succeeding section (99) reads : “If any person appoint his debtor executor of his will, such appointment shall not discharge the debt, but it shall be assets in his hands.” At common law when a person voluntarily assumed the administration of an. estate to which he was indebted, prima facie, the acceptance of the trust was considered as payment of the debt, and the 'administrator would be treated as holding the amount of the debt- in trust for creditors and heirs. This rule is based on the principle that, where the same person is liable to pay money in one capacity and to account for it in another, the law will presume that he has done that which it was his duty to do, that is, paid the debt. Winship v. Bass, 12 Mass. 204; Stevens v. Gaylord, 11 Mass. 256; Ipswich v. Story, 5 Metc. (Mass.) 313. It was also a principle of that law that, where a testator in his wall appointed his debtor as his executor, he thereby [330]*330forgave the debt so far as residuary legatees were concerned. That principle does not seem to have been recognized to any very great extent in this country, and it has been abolished by statute in some of the states of' the Union.
That it was the intention of the two sections above-quoted to abrogate that rule admits of no doubt. As was said by Sherwood, J., in McCarty v. Frazer, 62 Mo. 264, “the manifest object of these statutory provisions is to reduce to the same plane a.ll debts due the estate, whether owing by the executor or any other-debtor.” A majority of this court are also of opinion that these statutes abolish the common-law rule that, when an administrator takes charge of an estate, the-debts due by him to the estate, however evidenced, are-deemed to have been paid, and he is chargeable with them in his trust capacity as for so much money. It i.s-undeniably logical that, if the statute leaves this principle of the common law in operation, from the moment that an executor or administrator takes charge of an estate, all that be owes to the estate in his individual capacity, whether by bond, bill, note or otherwise, becomes so much money in his hands belonging to the-estate, for which his sureties in his administration are-liable. This conclusion, which is undeniably logical* has been more than once recognized in judicial decisions. In Simon v. Albright, 12 Serg. & R. 429, it was-held that one administrator cannot sue his co-administrator on a bond given by the latter to the intestate in his lifetime to secure a loan. The court, in the course-of its opinion, says: “The debt due from the defendant was assets in his own hands, which , if not accounted for according to law, his administration bond might, have been put in suit.” Nor would it make any difference with the operation of this principle of the common, law whether the administrator or executor were solvent or insolvent. This is shown by Leland v. Felton, 1 Allen (Mass.) 531, where it was held that debts due to-[331]*331the estate of a testator from the executor named in his will, and from the firm of which executor is a member, are to be treated and accounted for as assets ; and this, although he and his firm were insolvent at the time when he accepted the trust, and although he has not charged himself with such assets in his accounts, and although an account has been allowed by the probate court in which they are not included, but are mentioned merely as notes which it has been impossibe to collect; and notwithstanding the further fact that the executor has resigned his trust, and that an administrator de honis non had been appointed in his place. But in McCarty v. Frazer, supra, the supreme court of this state held that, under the operation of our statute, debts due by the administrator to the intestate do not become moneyed assets by operation of law in such a sense as to make the sureties in his administration bond responsible for their proper administration. We agree with the Kansas City Court of Appeals as to the effect of that decision in the following passage from an opinion of that-court by Judge Ellison: “The effect of that
decision is, that the mere fact of the administrator owing the debt to the estate does not make the debt actual money, but it remains a debt like any other, good or bad, as the case may be. And, being like any other debt, it must be inventoried and accounted for as other debts. Not to account for it in administration is a devastavit, and renders the administrator liable to the proceedings provided for in the sections of the statute above noticed” (referring to other sections of the statute). Ridgway v. Kerfoot, 22 Mo. App. 665. The just conclusion seems to be, that the operation of the statute is to prevent the assets being transmuted into money as soon as the administrator takes possession of the estate, but that it leaves them in his hands to be collected and accounted for exactly as any other assets. McManus v. McDowell, 11 Mo. App. 443. If, as in this case, the debt is evidenced by notes, the assets remain [332]*332in the form of snch notes until the executor, by some unequivocal act, as by charging himself in his account with so much money, canceling the notes, or otherwise, expresses a plain intention of paying them. If they bear interest, the estate is entitled to that interest according to their tenor, until they are thus paid. In other words, the estate is entitled to it as long as the testator would have been entitled to it, had he lived.
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• Thompson, J.
The questions arising on this appeal grow out of the action of the circuit court in sustaining objections to the final settlement . of appellant as executor of the estate of Henry C. Young, deceased, which' objections were made by Belle Young, the widow, and Gtrabell and Robert Young, two of his heirs. The executor paid Henry C. Young, Jr., one of the children of the deceased and also a distributee under the will, the sum of $300, for which he claimed credit in the order of the distribution made on the final settlement. This money was paid without an order of distribution. The respondents objected to it.
The facts concerning the only other item of dispute may be thus stated: At the death of the testator the .executor was indebted to him in the sum of $600 with [329]*329some accrued interest.. The indebtedness was then due, and was represented by two promissory notes bearing interest at the rate of ten per cent, per annum. The -executor inventoried the notes as notes., and in his final settlement charged himself with the principal sum and interest thereon at the-rate of ten per cent, to the date ■of the inventory, to-wit, April 6, 1886. The final settlement was approved by the probate court on August 81, 1889, and the respondents insisted that the executor should be charged with interest on the notes to that ■date. The probate court overruled both objections and approved the final settlement. On appeal to the circuit court both objections were sustained and the final settlement reconstructed in accordance therewith; and from that judgment the executor has appealed, and he insists that the judgment, of the circuit court is wrong on both propositions. We will discuss the question of interest first.
Section 98, Revised Statutes, 1889, reads: “ All debts due by an administrator to his testator or intestate shall be considered as assets in his hands.” The succeeding section (99) reads : “If any person appoint his debtor executor of his will, such appointment shall not discharge the debt, but it shall be assets in his hands.” At common law when a person voluntarily assumed the administration of an. estate to which he was indebted, prima facie, the acceptance of the trust was considered as payment of the debt, and the 'administrator would be treated as holding the amount of the debt- in trust for creditors and heirs. This rule is based on the principle that, where the same person is liable to pay money in one capacity and to account for it in another, the law will presume that he has done that which it was his duty to do, that is, paid the debt. Winship v. Bass, 12 Mass. 204; Stevens v. Gaylord, 11 Mass. 256; Ipswich v. Story, 5 Metc. (Mass.) 313. It was also a principle of that law that, where a testator in his wall appointed his debtor as his executor, he thereby [330]*330forgave the debt so far as residuary legatees were concerned. That principle does not seem to have been recognized to any very great extent in this country, and it has been abolished by statute in some of the states of' the Union.
That it was the intention of the two sections above-quoted to abrogate that rule admits of no doubt. As was said by Sherwood, J., in McCarty v. Frazer, 62 Mo. 264, “the manifest object of these statutory provisions is to reduce to the same plane a.ll debts due the estate, whether owing by the executor or any other-debtor.” A majority of this court are also of opinion that these statutes abolish the common-law rule that, when an administrator takes charge of an estate, the-debts due by him to the estate, however evidenced, are-deemed to have been paid, and he is chargeable with them in his trust capacity as for so much money. It i.s-undeniably logical that, if the statute leaves this principle of the common law in operation, from the moment that an executor or administrator takes charge of an estate, all that be owes to the estate in his individual capacity, whether by bond, bill, note or otherwise, becomes so much money in his hands belonging to the-estate, for which his sureties in his administration are-liable. This conclusion, which is undeniably logical* has been more than once recognized in judicial decisions. In Simon v. Albright, 12 Serg. & R. 429, it was-held that one administrator cannot sue his co-administrator on a bond given by the latter to the intestate in his lifetime to secure a loan. The court, in the course-of its opinion, says: “The debt due from the defendant was assets in his own hands, which , if not accounted for according to law, his administration bond might, have been put in suit.” Nor would it make any difference with the operation of this principle of the common, law whether the administrator or executor were solvent or insolvent. This is shown by Leland v. Felton, 1 Allen (Mass.) 531, where it was held that debts due to-[331]*331the estate of a testator from the executor named in his will, and from the firm of which executor is a member, are to be treated and accounted for as assets ; and this, although he and his firm were insolvent at the time when he accepted the trust, and although he has not charged himself with such assets in his accounts, and although an account has been allowed by the probate court in which they are not included, but are mentioned merely as notes which it has been impossibe to collect; and notwithstanding the further fact that the executor has resigned his trust, and that an administrator de honis non had been appointed in his place. But in McCarty v. Frazer, supra, the supreme court of this state held that, under the operation of our statute, debts due by the administrator to the intestate do not become moneyed assets by operation of law in such a sense as to make the sureties in his administration bond responsible for their proper administration. We agree with the Kansas City Court of Appeals as to the effect of that decision in the following passage from an opinion of that-court by Judge Ellison: “The effect of that
decision is, that the mere fact of the administrator owing the debt to the estate does not make the debt actual money, but it remains a debt like any other, good or bad, as the case may be. And, being like any other debt, it must be inventoried and accounted for as other debts. Not to account for it in administration is a devastavit, and renders the administrator liable to the proceedings provided for in the sections of the statute above noticed” (referring to other sections of the statute). Ridgway v. Kerfoot, 22 Mo. App. 665. The just conclusion seems to be, that the operation of the statute is to prevent the assets being transmuted into money as soon as the administrator takes possession of the estate, but that it leaves them in his hands to be collected and accounted for exactly as any other assets. McManus v. McDowell, 11 Mo. App. 443. If, as in this case, the debt is evidenced by notes, the assets remain [332]*332in the form of snch notes until the executor, by some unequivocal act, as by charging himself in his account with so much money, canceling the notes, or otherwise, expresses a plain intention of paying them. If they bear interest, the estate is entitled to that interest according to their tenor, until they are thus paid. In other words, the estate is entitled to it as long as the testator would have been entitled to it, had he lived. The mere fact of his having appointed the maker of his note as his executor does not change his contract with the latter; nor can the latter, by taking out letters testamentary on the ■estate of his creditor, diminish his own liability to that estate in the slightest degree, but the contract is to have its full legal effect, just as much as though it were the •contract of some third person.
Nor is it perceived how such a question can be made to turn upon an inquiry into whether the executor was solvent or insolvent, — that is, insolvent in the sense of being unable to pay all his debts, or in the mercantile sense of being unable to pay his debts as fast as they mature, and yet solvent in the sense of being able to' pay this particular debt. As the debtor has in this state the right to prefer his creditors, the only solvency, which in this relation could be made the subject of an inquiry,, would be the solvency of the executor in the sense of his being able to pay this particular debt. To that extent the statement of Shaw, 0. J., in Kinney v. Ensign, 18 Pick. (Mass.) 235, that, on technical ground as well as •on considerations of policy, an administrator is not permitted to show that he could not collect a debt due from himself holds good, even under the rule established in McCarty v. Frazer, supra.
A majority of the court are, then, of opinion that the word “assets” in the above statute is not equivalent in value or meaning to the word money. An executor, who owes money to the estate of the decedent •on overdue notes, may inventory them as money. By ■so doing he at once charges his sureties with so much [333]*333money on hand, and his subsequent insolvency does-not relieve them; nor does his insolvency at the time when he made the inventory, unless it amounts to a total inability to pay, because even an insolvent debtor may pay his debts. But if he inventories them as notes, as the executor did in the present case, he is responsible and remains responsible on them as notes. The character of the assets is not changed by the appointment of the debtor as executor.
This also seems the view most beneficial to the estate. The right of the executor to get credit for uncollectable assets does not depend upon the fact whether or not the debtors are insolvent; but it depends upon the fact whether he could have collected the assets-by using such diligence as the law imposes upon a trustee. Williams v. Petticrew, 62 Mo. 471. Now, it will not be contended that, when an executor was a. debtor of the estate on an overdue obligation, and was solvent at the date of filing his inventory, he could not. have collected that debt from himself. It then becomes his duty to pay it, if he can pay it, and his subsequent insolvency cuts no figure in the case. The case of McCarty v. Frazer, supra, has reference to a state of facts, where the debts are worthless as assets at the date of filing the inventory.
We have been referred to several decisions, as having a bearing upon this question, but none of them are directly authoritative. The case of Eichelberger v. Morris, 6 Watts (Pa.) 42, decided the question under the rule of the common law. In Kinney v. Ensign, 18 Pick. (Mass.) 232, the common-law principle was stated by Chief Justice Siiaw ; but the court refused to apply the principle so as to prevent an administrator from exercising his right to redeem a mortgage for the estate. In several decisions of the court of appeals of New York, which have fallen under our notice (Soverhill v. Suydam, 59 N. Y. 140; Baucus v. Stover, 89 N. Y. 1, Re Consalus, 95 N. Y. 341), the question arose under [334]*334the following statute of that state: “The naming of any person executor in a will shall not operate as a discharge or bequest- of any just claim which the testator had against such executor, but such claim shall be included among the credits and effects of the deceased in the inventory, and such executor shall be liable for the same as for so much money in his hands at the time such debt or demand becomes due, and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin as part of the personal estate of deceased.” A statute so explicit in its terms left no room for judicial construction, and the decisions under it are hence inapplicable to the question before us.
The conclusion of a majority of the court, then, is that the circuit court committed no error in charging the executor with interest, according to the tenor of the notes, down to the time of his final settlement. But in this conclusion Judge Biggs does not concur.
But on the other question presented for decision all the members of this court are agreed. The facts bearing upon this exception may be stated as follows : The deceased left surviving him a widow and four sons. The will provided that, after the payment of a certain legacy, and after two of the sons, who were then minors, had been educated out of the general estate, the residue of the estate was to be divided equally among the four sons. This disposition of the estate was made subject to the dower interest of the widow. It was also stated in the will that Charles Graham Young, one of the sons, had received the sum of $300 as an advancement, and it was provided by the testator, that this amount should be charged to Charles in the distribution of the estate. Belle Young, the widow, was guardian of Grabell Young, who was at the time a minor. On her petition the probate court ordered the appellant to pay to her, as guardian of Grabell Young, the sum of $G75 for the support of her ward, to be [335]*335■charged against him as so much paid on distribution; which was accordingly paid, and for which the appellant received a credit in his final settlement. Previous to the final settlement the executor had paid the following amounts without any order of distribution, to-wit, Belle Young, $300; Robert Young, $200, and Henry C. Young, Jr., $300. After deducting the amounts paid to the widow and Robert from the balance, as shown in the final settlement, there remained the sum of $499, and in the distribution of this the appellant claimed the right to deduct the amount paid Henry C. Young, Jr. The probate court allowed the credit, but it was disallowed by the circuit court.
Under the record, as presented to this court, we are at a loss to know upon what principle this credit was rejected. Graham Young had no interest in the distribution, because he had been fully advanced. Belle Young was entitled to a child’s part of the personalty, and she had been paid $300. Under the orders of the probate court Graham Young was paid largely in excess of $300, which must be regarded as so much distributed to him. The executor had paid Robert Young $200 on his distributive share, and, therefore, it only required $100 to make him equal to the other heirs. The final settlement as presented showed an actual balance in the hands of the executor of $199, which amount was more than sufficient to make Robert equal with the other distributees except Grabell. The excess paid Grabell resulted from the orders of the probate court, and we are not disposed to impose any penalty on the executor for obeying them. The mere fact that the money was paid to Henry 0., without first obtaining an order of distribution, could not affect the question on the merits, because, if nothing had been paid Henry C., he would have been entitled to an order of distribution in his favor for at least $300. Hence, we conclude that the judgment of the circuit court on this question was erroneous.
[336]*336The judgment of the circuit court will, therefore, be reversed, and the cause remanded, with directions to-render a judgment in accordance with this opinion, and. that such judgment be certified to the probate court, for its guidance in the final distribution of the estate.
Judge Rombaueb concurs. Judge Biggs concurs as to-the second question, but dissents as to the first.