The court are of opinion that, on the agreed statements of facts, the plaintiff is entitled to judgment.
The money was held by the widow as a trust fund, she hei self being entitled to the interest, for her life. Upon her de cease, the administrator de bonis non, with the will annexed, of the husband, is the successor in that trust, and entitled to take and administer the trust fund, according to the original will. If it consisted in stocks or specific property, other than money, a bill in equity might be necessary to enable the administrator to recover it. But when it remains wholly in money, in the hands of the defendant as administrator of the widow, an action for money had and received — which is in the nature of a bill in equity — when nothing remains to be done, but the payment of money, may be maintained.
This trust fund was not assets of the widow, nor could her creditors be entitled to participation in it. The whole fund must be transferred to the personal representative of the husband, as successor in the trust. The administrator de bonis non of the husband is the proper person, we think, to take and administer the fund, because, if there should still be debts due from the testator, as there may be, notwithstanding the lapse of time, on covenants real, or the like, the creditors would be entitled to payment before the legatees. Otherwise, the administrator de bonis non will be bound to pay over to the legatees, according to the will.
It being agreed that the sum of $8115-67, in the defendant’s hands, is the specific proceeds of the sale of the real estate, and the amount of the trust fund, that is the sum to be recovered.
This judgment being rendered on the statement of facts, that statement should be entered of record.