This is an appeal from a judgment entered in favor of the claimant, for the delivery of a ring by defendant, as executor, said judgment having been entered on the report of the referee. This matter has been twice before the general term on appeals from judgments entered on the reports of referees in favor of defendant, and has been twice sent back, the general term reversing the judgments on the facts. There can be no question that the findings of fact by the referee are amply sustained by the evidence taken before him, which was practically the same as was taken before the former referees.
The only question we need to consider is one of law, which is raised by the defendant, to wit, should the claim herein have been made against the defendant personally, and not against .him as executor of the estate of the deceased? The defendant contends that the taking of the ring by him was an individual act on his part, and not an act of his as executor. The defendant executor produced the ring on the trial, and it was one of the findings of fact, which was supported by the evidence, that he had inventoried the ring as an asset of the estate of the deceased. . The evidence shows, beyond any question, that the ring was given to claimant by the deceased some two or three weeks before his death, and that she wore it from that time on, and had it in her possession at the time of, and after, the death of the deceased. "Upon the request of the defendant executor, and his statement that the ring should be inventoried in the estate, she handed it to him. There was no proof whatever of any intention on her part to make a gift *667Of this ring to the estate. Merely handing it "to him, on his claim; that it should be inventoried among the assets of the estate, did not work a transfer of the title. The ring never has belonged to-the estate of the deceased, and no harm can be done by the executor delivering it back to the plaintiff. It is undoubtedly true,, as defendant contends, that the executor cannot bind his estate on contract; but this is not a claim on a contract, nor is it a claim for damages. It is simply a claim for the restoration of the ring; to the claimant. It seems to us that the principle laid down in-the case of Wall v. Kellogg’s Ex’rs, 16 N. Y. 385, controls this case-So, too, Story, Eq. Jur. § 796; Woodcock v. Bennet, 1 Cow. 711; DeValengin’s Adm’rs v. Duffy, 14 Pet. 283, (decided in the supreme-court of the United States;) Conger v. Atwood, 28 Ohio St. 140; Simpson v. Snyder, 54 Iowa, 568, 6 N. W. 730; and Barry v. Lambert, 98 N. Y. 300,—seem also, to us, to sustain the contention of the claimant, (respondent.) In 2 Williams, Ex’rs, 1509, the following principle is laid down:
“The plaintiff may, in many cases, have an advantage in proceedings-against the assets, rather than against the executor personally. The executor, in his individual capacity, may be insolvent. In his character as executor, he may have assets adequate to answer any claim. And, when the-money is paid to his use, justice seems to require that the person who has made payment should have the liberty of looking to the fund which the executor has, in that character.”
In Steele v. McDowell, 9 Smedes & M. 193, it is held that:
“It is but just and right that the person making payment should have the-right to look to the fund which the executor holds, and recover it under an account for money paid to the use of defendant as executor.”
The judgment should be affirmed, with costs.
DYKMAY, J., concurs.