delivered the opinion of the Court—Cope, J. concurring.
Upon the facts of this case we are of opinion that the judgment of the Court below should be affirmed. The facts are these: The plaintiff was the creditor of one Joaquin De la Guerra, and had obtained judgment and execution against him.. The complaint alleges that defendants, as executors and residuary legatees of José De la Guerra, held, or had, some property of Joaquin for his use and benefit; that the plaintiff, about the 1st of February, 1859, applied for and obtained an order from the District Court, directing the defendants, executors, as aforesaid, to appear before"a referee named, and make disclosure touching the property in their hands belonging to the'dobtor of plaintiff; that the defendant, Pablo De la Guerra, appeared and answered that the same property was left by their testator to be given to Joaquin, if the executors saw fit; that there was no obligation, except a moral obligation, and that the time of their giving it to him, if they saw fit to give it him, was left to their discretion; the directions were given orally; that a memorandum was made of these directions, which the witness refused to produce. The Court, on the report of these facts by a referee, who took the examination of De la Guerra, made an order authorizing the plaintiff to institute an action against the said De la Guerra and the other executor, for the recovery of enough of the alleged property in their hands for the satisfaction of the judgment of the plaintiff.
The complaint goes on to state that the testator died previously to the date of the plaintiff’s judgment, leaving a will, which was duly probated, and defendants qualified as executors under it; that the testator in the will ordered his executors to separate one thousand four hundred head of cattle, which were to be sold, and the proceeds disposed of according to the instruc*111lions he had previously given; “and further in the said will their testator declared that for his son, Joaquin, he had made a secret assignment, which his executors would carry into effect in accordance with his instructions, when it should be convenient.” * * The complaint goes on to aver that the executors, were instructed by their testator to dispose of the cattle, and to retain in their hands the proceeds thereof, or a part of the same, for the use and benefit of Joaquin, and they were specially directed, by written or oral instructions, in the disposition of the proceeds of said cattle, to discharge the then existing debts of Joaquin. The complaint concludes by averring that the defendants have not, in conformity with the written or oral instructions of the testator, separated the said one thousand four- hundred head of cattle, from the stock of the cattle of their testator, but have converted them to their own use.
To this complaint there was a demurrer, upon the ground that the facts did not constitute a cause of action, and this demurrer was sustained. From this judgment the appeal is taken.
Waiving many other objections to this bill, this one is fatal. It cannot bo contended that the creditor of Joaquin, intervening in this way, has any greater rights than Joaquin himself. The creditor, indeed, by this process, claims to be subrogated to his rights, and to stand in his place. This is not a creditor’s bill, filed to reach legal or equitable rights of the debtor; but it is a proceeding instituted by the order of the Court, under the statute, to enable the creditor to recover property of his debtor, in order to pay his debt.
But the bill does not distinctly aver any rights of property whatever in the judgment debtor, or any legal trust for him on the part of the executors. It avers that the testator, either by oral or written directions, had made some provision for Joaquin. We must take the pleading most strongly against the pleader. We are not aware of any law which gives effect to the oral direction of a testator, as a will, or as any part of a will. It is true it is said in the bill that the testator had declared in the will that for his son Joaquin he had made a secret assignment, which his executors would carry into effect in accordance with his instructions, when it should be convenient, but what its effect, or how made or evidenced, or what rights it gave Joaquin in the property, does not appear.
*112But the conclusive answer to» the whole case' is, that, at the most, Joaquin could not be more than a legatee, upon the facts stated. The executors would only be Trustees for him for his legacy. The plaintiff can claim no greater rights in this proceeding than Joaquin himself, if he were the plaintiff; and Joaquin, on this bill, it is very evident, could not maintain the action. It does not appear that the estate is settled, or that the property or money, here claimed, is not necessary to pay off debts or expenses of administration. Mor that Joaquin would be entitled, until final settlement, to his legacy, without first tendering a refunding bond. (See Wood’s Dig. Tit. Estates of Decedents, Secs. 250—253.)
Whether a judgment creditor, under some circumstances, might not file a bill to restrain the payment of a legacy until a settlement of the administration account, or be admitted to give the bond required of the legatee or distributee, it is not necessary to decide; for the present is not such a proceeding.
Judgment affirmed.