delivered the opinion of the Court, as follows.
Upon the decease of the testator, his personal property vested in the plaintiff, his executor, tobe administered according to the provisions of the will, and the requirements of law. Upon contracts arising, or torts committed, in relation to this property, after the testator’s death, the action is properly brought in the name of the executor, in his individual capacity; and he is answerable over for the faithful fulfilment of his trust.
With regard to the competency of the witnesses objected to, neither 4heir claim under the will, nor their remedy against the plaintiff, can be affected by the event of this suit. The fund, placed at his disposal, was abundantly sufficient for the payment of all the bequests in the will; and whether he managed it providently, or wasted it, or lost it by his negligence, his responsibility to the legatees would remain the same. If he prevails in this action, he may be the better able to discharge his duty to them; but their situation, in this particular, differs not from that of a creditor, who is a competent witness for his debtor. The case cited from 1 Mass. 239, is very briefly reported; but it appears to have been an action for a sum of money, alleged to be due to the estate of the testator, brought by the executrix, as such. The assets therefore would necessarily be increased by a recovery in that action; and thus the heir, entitled to a distributive share, directly interested. But the event of this suit can have no tendency either to increase or diminish the assets.
*255It is objected, that the averment of property in the plaintiff is negatived by the action against the widow of the testator; which has been defaulted, and is now continued for judgment. The case cited from Strange, in support of this objection, shews that the property is changed by the recovery of damages. But judgment is not yet rendered, in the suit against the widow. It may be arrested; or the default may be taken off, at the discretion of the Court, and she may yet prevail in a trial upon the merits.
The debts having been paid, and the payment of the legacies, except one cow, being postponed by the testator, for the period of twelve years after the decease, unless it could be sooner done with convenience, the case finds that the personal property was suffered to remain on the farm; under an implied understanding that the defendant would pay the legacies. As the defendant is residuary legatee, if this had been done, the plaintiff might not have been able to sustain this action. But it has not been done. The property was not transferred by the executor; it was suffered to remain where it was, until the period should arrive, when it might be necessary for the payment of the legacies. The defendant was bailee of the property for the executor; and no action accrued against him, until after demand and refusal. The statute of limitations therefore is no bar.
As to the receipt given by the plaintiff to the defendant, it was proved at the trial that it had no relation to the property now in controversy.
The Court, being of opinion that the jury were properly instructed by the Judge, who presided at the trial, there must be judgment on the verdict.