This case discloses a most extraordinary misappropriation of the funds belonging to the estate of the testator, by his executor, who has been removed from his office. The testator, by his will, which was made in 1828, devised a farm, and gave the stock and utensils, which were upon it, to John Cutting Wood. But afterwards he altered his mind, and conveyed the farm in fee to Amos Goddard, and also sold the personal property; so that at the time of his death, in 1835, when the will was proved, he was not seized of or entitled to the real and personal estate so devised and bequeathed. The devise and bequest became inoperative. The payment for the farm was made by Goddard in his promissory notes, amounting to $1000, which belonged to the testator’s estate, and came to the hands and possession of Nathan Nickerson Jr., the executor. And instead of collecting the money due upon them, to be appropriated acqording to the will, he delivered them to the defendant, taking the receipt which is set forth in the statement of facts agreed by the parties. This appears to have been done voluntarily on the part of the executor ; and there is nothing in the case to show that the defendant obtained the notes by any fraudulent representations. We know not the motives or reasons which induced the executor thus to misappropriate the property. But however good they may have been, it is too clear for argument, that they proceeded upon misapprehension and mistake. The defendant *38appears to have conducted himself fairly, and on the 21st of September 1836, he gave credit for the said sum of $ 1000, on his guardianship account. The executor has been removed; the defendant has collected the money on the notes ; and the plaintiff, as the administrator de bonis non, cum testamento annexa, of the testator, now claims to recover, on the ground that the money was had and received for his use in his said capacity.
The goods, chattels, and choses in action of a testator, are holden by the executor in trust, and not as his absolute property. Dawes v. Boylston, 9 Mass. 352. And there is no pretence, m the case at bar, that the executor had acquired an absolute property in the notes in" question “by an administration and account.” The notes were delivered without any good consideration, and the plaintiff might have maintained trover for them, as well as assumpsit for the proceeds. It is true that the defendant received them not for himself, but for his ward, and it is contended for him, that he now holds the proceeds in outer droit. But that circumstance does not make the case any better for him. The ward is not answerable himself. He remains still in his minority, and his property is in the hands and under the management of the defendant. In 1840, the defendant was specially requested to deliver the notes, or the proceeds if collected, and has refused to do so.
The facts, disclosed in the receipt produced, do not furnish any just reason for his detaining the property in his hands. It clearly belongs to the estate of the testator, to be administered according to his will.
But the case finds that the defendant has been summoned as the trustee of Nickerson, in a process of foreign attachment, which is now pending in the county of Franklin ; and if the property belonged to Nickerson, that process should protect the defendant against the claim of the plaintiff. But the short and true answer is, that the property does not belong to him, but to the estate of the testator, from the administration of which Nickerson has been removed.
It appears that the defendant’s ward is one of the residuair *39legatees under the will of the testator, and that the said Nicker-son received divers sums of money belonging to those legatees, for which the sureties on his probate bond have been sued; which suit is now pending. And the defendant contends, that he ought by law to retain in his hands any thing that may be due to his ward, as residuary legatee, on account of money received of Nickerson as aforesaid. But we think this claim is untenable. The estate is now in the process of settlement. The plaintiff is entitled to the possession of all that has not been legally disposed of, to the end that the will of the testator may be carried into effect. This action is not now to be affected by the claim which the defendant might maintain against Nickerson for his defaults while he held the trust.
It has been farther contended for the defendant, that he should be allowed to deduct, from the money received, what money he has expended on account of his ward before the demand was made. But we do not perceive any good reason for such allowance. It would seem to rest on the right which the defendant had thus to misappropriate the money which he had so received. But no right to the property passed by the delirery of the notes to the defendant. It may be that the defendant, believing this property to belong to his ward, may have expended more money upon him than his pecuniary circumstances would reasonably have warranted. But that fact, if it exists, would be a subject of regret, but would not affect the right. Lawrence v. Carter, 16 Pick. 12.
The only remaining question is, what sum the plaintiff should recover. And we think it should be the amount which the defendant had received upon the notes at the time when the demand was made, with interest upon the same afterwards