delivered the opinion of the Court. There "s considerable difficulty in treating the estate of a ward, in the custody and under the control of a guardian, as an estate held in trust by the guardian. He is appointed to take charge of the property and manage it for the benefit of the ward ; but apparently the property remains vested in the ward, so that upon the death or resignation of the guardian there is no change of property. There is a manifold distinction in this respect, between the case of a guardian and that of an executor or administrator. The original owner being dead, the personal, property must vest in some one ; and by operation of law it vests in the executor or administrator, and is deemed so vested by relation, from the decease of the owner. By this principle of law the legal estate is in the executor or administrator ; but he holds it strictly in trust for the various parties beneficially interested.
But we have not thought it necessary to pursue this inquiry to all its results, or to express an opinion, whether, in any case, a guardian can be deemed a trustee, because the Court are of opinion, that the creditor has a plain and adequate remedy at law.
That a party in the situation of the complainant, ought to have some remedy for the recovery of "his debt, is very obvious ; and if he has not, it must rather be attributable to the oversight of the law, in not foreseeing such a precise case, than to any deliberate purpose of the legislature. The whole policy of the law is, to subject all the property of an owner, real and personal, to the payment of his debts. The attachment laws, the laws regulating assignments, and commissions of insolvency, those providing for the sale of real estate and of all rights to and interests therein, by executors, administrators and guard *39<ans, and many others of like kind, are all framed in the spirit of this policy. It would be strange, therefore, that a guardianship, intended to prevent an improvident person from squandering his estate, and to provide for its being appropriated to its proper uses, could be so legally used as to screen the property of its owner from the payment of his just debts. The common remedy against a debtor, who has no visible or tangible prop pcrty within the reach of the law, but who still has the means of paying, is an arrest, a coercive measure, designed to compel him to apply his means to the payment of his debts. But the arrest of a spendthrift under guardianship, who is by law deprived of all power over his own property, and of the means of applying it to the payment of his debts, would be alike oppressive to the debtor and unavailing to the creditor.
But we think an adequate legal remedy may be found, in the bond of the guardian, and the various provisions of the statutes respecting it.
Guardians of spendthrifts are to give bond to the judge of probate, in like manner and with like condition as the guardian of an insane person. Revised Stat. c. 79, § 16. Guardians of insane persons are to give bond with like condition as the guardian of a minor, except the provision relating to the education of the ward. Revised Stat. c. 79, § 10. The guardian of a minor is to give bond with surety, with condition as follows ; 1. to make and return a true inventory ; 2. to dispose of, and manage, &c. and faithfully discharge his trust in relation thereto, and to the custody, education and maintenance of the ward ; 3. to render an account on oath in one year, and when required ; and 4. at the expiration of his trust, to settle his accounts, and pay over and deliver, &c. Revised Stat. c. 79, § 5.
By § 17, of the same chapter, it is made the duty of every guardian appointed under the provisions of that chapter, whether for a minor or any other person, to pay all just debts due from the ward, out of his personal estate if sufficient, and if not, out of his real estate, upon obtaining a license, &c.
It is thus made the duty of the guardian, by law, to apply the property of the ward to the payment of his debt:. One of the conditions of his bond is, to dispose of and manage tire *40property according to law, and for the best interest of the ward, and faithfully to discharge his trust in relation thereto. This trust consists in part in the power thus confided to the guardian, and the duty of exercising it for the benefit of those interested in it. This duty is, to pay the debts out of the property of the ward, and is of course limited by the amount of assets. But to the extent of those assets, a failure to pay the debts is a violation of his duty, and of course a breach of the condition of the bond. Whether such breach of duty would arise before the debt is ascertained by" a judgment, it is not now necessary to determine, because here it has been so ascertained, and the debt demanded on execution. By another provision of the Revised Stat. c. 79, § 17, it is made the duty of the guardian to settle all accounts of the ward ; if on such settlement a balance is found due by the ward to another person, to the satisfaction of the guardian, he would, no doubt, be authorized to pay it; whether he would be bound to do so, without the sanction of a judgment, is not so clear.
By a further provision in the same chapter of the Revised Statutes, § 25, any bond given by a guardian may be put in suit, by order of the judge of probate, for the use and benefit of the ward, or of any person interested in his estate. This language, we think, is comprehensive enough to include creditors. They have a direct interest in having the estate applied and administered in the manner required by law ; it is jus ad rem, if not jus in re. It is the same species of interest which a creditor has in the estate of a deceased person, in the hands of the administrator, which is secured and guarantied by the administration bond. And the statute last cited proceeds, u and the proceedings in such suit shall be conducted in like manner as is provided with respect to suits on bonds of executors and administrators.” Under this provision any person mteiested may apply to the judge of probate for an order to put the bond in suit. It has been decided in several cases, that the allowan -.e or refusal of such an order, is a regular judicial proceeding in the Probate Court, a judicial order or decree, from which any party aggrieved thereby may appeal. Robbins v. Hayward, 16 Mass. R. 524 ; Coffin v. Jones, 5 Pick. 61. So, if a creditor be refused such an order, he *41may have the decision of the Supreme Court of Probate thereon.
The course of proceeding then, we think, is sufficiently indicated by the statutes regulating suits on probate bonds, given by executors and administrators, with this restriction, that in all cases, before suit can be brought on a guardian’s bond, there must be an order of the Probate Court ; whereas on bonds of executors and administrators, suits may be brought in certain cases, without any order or authority of the Probate Court. Revised Stat. c. 70, § 3, 4, 5. Such order of the Probate Court being obtained, as required by Revised Stat. c. 79, c. 25, the proceedings are to be conducted in like manner as on bonds of executors and administrators. By recurring to Revised Stat. c. 70, § 3, it appears, that if the applicant be a creditor, who has had his debt ascertained by a judgment, and payment has been refused on demand made, the bond may be put in suit for the benefit of the creditor. By § 7, the writ in such case shall be indorsed by the person for whose benefit the suit is brought, and if for the benefit of a creditor, there shall be a further indorsement, &c. The 10th section specially provides for the manner in which execution shall be awarded, and if for the use of a creditor it may be levied in his own name and for his own benefit.
Where there has been any other breach of the bond of the guardian, than a failure to pay the debt of a creditor, the suit would be conducted in the same manner as on a like breach of the bond of an executor or administrator.
Believing that the complainant in this suit has a plain and adequate remedy at law, in the-caseo stated in his bill, the Court are of opinion, that it is not a case for the interposition of the equity powers of the Court; and therefore that there must be, on the demurrer,
Judgment for the defendant.