Andrew J. Lee, the husband of the plaintiff, effected a policy on his life for the sum of twenty-five hundred dollars, which after his death the defendant collected, and claims to hold by virtue of an alleged assignment to him in trust for two of *434the children of said Lee. The defendant has been duly appointed' guardian of the children referred to, has inventoried the money received as their estate, and given bonds therefor.
Seth Lee was appointed administrator upon the estate of Andrew J. Lee, by whom the estate was represented insolvent. He has settled his final account as administrator, but has not at any time charged himself with any money received upon the policy of the intestate.
By R. S., 1857, c. 75, § 10, “ a sum of money received for insurance on his (the intestate’s) life, deducting the premium paid therefor within three years with interest, does not constitute a part of his estate for the payment of debts or purposes specified in the first section of chapter sixty-six, when the intestate leaves a widow or issue, but descends, one-third to his widow, and the remainder to his issue; if no issue, the whole to the widow, and if no widow, the whole to the issue.”
The plaintiff, as the widow of Andrew' J. Lee, claims to recover the third of the sum received by the defendant upon the policy of her husband.
The estates of deceased persons are to be settled in the probate court. The debts due to the estate belong to the administrator or executor, whose duty it is to enforce their collection. The claim against the insurance company upon their policy was a claim due the estate, if not previously assigned. The administrator was bound to collect it. When collected, the administrator was to deduct the premiums according to the statute, and the residue was to be distributed in accordance with the statutory provisions on the subject. The plaintiff’s claim would be through the probate office and after distribution.
Now the policy in question belonged to the estate, or it did not.
If it did not belong to the estate, but had been previously assigned in good faith, then neither the administrator nor the plaintiff had any claim upon the money collected by the assignee.
If the money belonged to the estate, and the defendant collected the money without authority, then the claim may still be enforced *435against the insurance company. Payments made to an executor de son tort, constitute no defense to an action by the rightful administrator or executor. Hunter v. Wallace, 13 Up. Can. Q. B. 385. But in such case the suit can only be maintained by the representative of the estate. The plaintiff could not recover in any suit upon the policy in her own right.
So the administrator may affirm the collection made by the defendant, if without right, and recover the amount received to the use of the estate, and to be distributed according to law. But the plaintiff could in no way affirm the wrongful acts of the defendant. Her interest is but a third, and the administrator might choose to proceed against the insurance company. If the defendant has money belonging to the estate, however received, his indebtedness is to the estate, and it is for the administrator to call it out of liis hands, not for those whose right to it or any portion of it accrues after it becomes a part of the estate, and by the order of the judge of probate for its distribution.
If the policy belonged to the estate, and the defendant collected the money without authority, he would bo an executor de son tort. An executor de son tort is one who assumes the office by intrusion, or interferes with the assets of the estate without authority, as by suing for, receiving, or releasing the debts due the estate. Toller on Executors, 38. One who, without rightful authority, assumes the administration and disposition of the estate of a deceased person, and receives and pays out money belonging to it, is liable to a creditor as executor de son tort. White v. Mason, 26 Maine, 301. The right of action is given by B. S., 1857, c. 64, § 32, “ to creditors and other persons aggrieved ” against the person interfering as executor de son tort. But in such case “ the declaration against an alleged executor is in the same form, whether the defendant be rightful executor or executor de son tort.” Myrick v. Anderson, 68 E. C. L. 719. But in this case the action is not against the defendant as executor, and, therefore, even if the plaintiff is one of the persons referred to in § 32, it cannot be maintained. The defendant should have been declared against as executor.
*436If the defendant claims to hold the funds received by him under an assignment, whether in trust or otherwise, the validity of which is to be contested oñ the ground of fraud or want of consideration, it is for the administrator to contest the matter. If he does it successfully, he holds the funds as a part of the estate. If he omits or neglects his duty, he is liable for such omission or neglect as for any other omission or neglect of duty. But the plaintiff is not the proper party to contest the assignment, whether fraudulent or not. The whole estate, and those having a right to the funds, are interested. The plaintiff at most represents but a third. The legal representative of the estate is the proper party to any litigation, when the assets of the estate are to be recovered for its benefit. The premiums and interest for three years thereon belong to the general assets, and are a part of the fund for the payment of debts. The residue is to be distributed between the widow and the children of the intestate. The administrator represents all those rights* and unites in himself all those interests. Upon'him alone the law devolves the duty of their protection and enforcement. He only can give a valid discharge. His bond to the judge of probate is the security afforded by law to all interested in the estate, _ and if he fails in his duty, those aggrieved must seek their remedy upon it. Plaintiff nonsuit.
Kent, Walton, Dickerson, Danforth, and Tapley, JJ., concurred.