*140The opinion of the Court \Jas prepared by
Weston C. J.The first question presented is, whether by the will of Daniel Rose deceased, his executors, as such, are invested with the character of trustees under the will, so that the bond, given by them as executors, is all the security for the faithful performance of the duties confided to them, which they are required by law to give.
There can be no question but the office of executor is in its nature a trust, in the discharge of which he acts as trustee. And where there is no other special designation of the executor, or any other person, as trustee, it belongs to the executor, as such, to administer the estate, according to the provisions of the will. Such was the decision of the Court in Dorr v. Wainwright & al., 13 Pick. 328, upon the ground, that no trustee was expressly named. But in the will under consideration, the executors are also distinctly appointed to act as trustees. And this designation Is so often repeated, as to manifest a clear and plain intention, on the part of the testator, to invest them with the double capacity of executors and trustees. In one of the latter clauses of the will, he speaks of them as trustees, and expressly clothes them with all the powers, necessary to the fulfilment of the trust. And if any doubt upon this point could be raised, the last clause is altogether decisive, which provides, that in case of the death, the neglect or refusal, or incapacity of either of the trustees, his place shall be supplied by the appointment of the survivors.
If the persons named as executors, were also appointed trustees, they are required by law to give a bond as such, the testator not having relieved them from this obligation. Nor is this requirement of law useless and unnecessary in this case ; although the faithful discharge of their duties under the will may have also been secured by the bond, given by them as executors. One of the conditions of the bond, required to be given by trustees is, that they shall annually render an account to the Judge of Probate, of the annual income and profit of the estate held in trust. St at. of 1821, c. 51, <§> 58. This special duty, thus imposed by law, is not provided for by the executor’s bond.
The section last cited, requires affirmatively, that trustees under a will should give the bond therein prescribed, and this duty is not *141made to depend upon their being notified or cited so to do. They should present themselves to give the bond required, in such sum, as may bo ordered by the Judge. Neglecting or refusing to do so, by the fifty-ninth section of the same statute, they shall be considered as having declined the acceptance of the trust. And in that case, other trustees arc to bo appointed by the Judge of Probate. Jurisdiction of the subject matter belongs to the Judge of that Court, of which this Court has no other supervision, than what is appellate. The Judge of Probate must decido when the exigency exists, which requires bis interposition to make a further appointment. As this is founded upon the neglect or refusal of the trustee or trustees to give the requisite bond, it must be found or adjudged by the competent authority, and they thereupon be held or considered, as the statute prescribes, to have declined the trust. This has not been done by the Court below, and cannot be done by this Court, except in the exercise of its appellate jurisdiction.
It results, that the executors, being also appointed trustees under the will, remain such until by their neglect or refusal to give the bond required by law, they shall be considered by the Judge of Probate to have declined the trust.