This is an action on the case against the defendants, as executors under the will of Robert H. Gardiner, to recover damages alleged to be caused by raising the dam on Cobbos-secontee stream, in Gardiner, by which the plaintiff’s lands are flowed.
The writ alleges that the defendants, “in their capacity as executors, contriving and intending to injure the plaintiff and deprive him of the use and benefit of (his) said mills, mill-dam, and privilege, did . . . erect, build, maintain, and keep a certain dam upon and across the said Cobbossecontee stream,” etc.
By the will of Gardiner, it appears that the title to the dam and the land upon which the dam and mills are built is in the defendants, as trustees. All the real estate of the testator vested in them, subject only to be divested for the payment of his debts.
The duties and responsibilities of trustees and of executors are distinct and different. They act in different capacities and under different liabilities. They are legally as distinct as if they were different individuals.
*118■ The action is practically against the estate of Mr. Gardiner, for if the defendants are rightfully sued as executors, the estate must be responsible. It is not against them for any wrongful acts of their testator. It is for their own wrong-doings. But their wrong-doings were not official as executors. It was no part of their duty to commit trespass upon the rights of others. If they did they would be liable as individuals. It would be monstrous to hold that judgment and execution should issue against the estate of their testator for torts which they could have no authority by virtue of their ex-ecutorship to commit. If an executor commits a trespass, it is his individual and personal act, not his representative act as the executor of -his testator. He is to settle the estate, not destroy it.
If the defendants, in the acts complained of, were acting in their capacity as trustees in whom the legal title was vested, that would not render them liable as executors. Nor would their bondsmen, as executors, be responsible for any torts committed by them as trustees. ' Exceptions sustained.
Cutting, Kent, Barrovvs, Daneorth, and Tapley, JJ., concurred.