The question is, whether Aaron Dickinson, who is executor of the last will and testament of Sally S. Dickinson, and guardian of Medad D. Smith, the plaintiff in interest in this suit, which is brought in the name of the judge of probate, is answerable, as executor or as guardian, for a legacy left by the said last will to the said plaintiff in interest. This question has been elaborately argued by coun • sel; but, in the judgment of the court, it is very clear, that the executor is liable for the payment of the legacy, and that nothing appears in the case which by law discharges him from this liability. And it is equally clear that he is not liable in both capacities. To him it is immaterial whether he is to be charged as executor or as guardian; but to his sureties in his bonds the question is important. And we consider the law to be well settled, that if a legacy is given by will, and the same person is executor and trustee or guardian for the legatee, he is bound to account for the legacy, as executor, if he has sufficient assets, unless he has rendered an account in the probate office, charging himself as trustee or guardian, and that account has been allowed by the probate court. The law was so laid down and settled in Hall v. Cushing, 9 Pick *54395, 409. That case, it is true, did not necessarily require a decision on that point; but it was supposed that it would become important on a hearing in chancery, and it was therefore argued by counsel, and the question was decided, after full deliberation; and we see no cause to doubt the correctness of the decision.
It was argued, in the present case, for the legatee, that the guardian is to he held liable to account for the legacy, because it was included in a paper intended to be his account of guardianship. This intention is denied by the guardian; but we do not consider the fact material. There could be no transmutation of the assets, until the account was allowed by the probate court, so as to charge the guardianship sureties. If such an account had been rendered, it may well be doubted if it ought to be allowed, unless the guardian would give a new bond. If his sureties on his bond as executor were liable, it was not competent for him to transfer that liability to his sureties on the guardianship bond. And it seems clear that the former sureties were liable. The executor had a right to retain the assets for four years; (Rev. Sts. c. 66, § 3;) and, while he thus held them he appropriated them to his own use, which certainly made him, and his sureties on his bond as executor, liable. The assets, have never been in the possession of the guardian, and this was caused by the misapplication of them by the executor. Nor are we aware of any means, by which the guardian, as such, could have obtained possession. He could not- sue himself, and he is not chargeable on the ground that an executor or administrator is chargeable for a, private debt which he owes the estate. That principle is grounded on the necessity of the case, and no such necessity exists in the present instance. The legatee might have proceeded against the executor and his sureties, and there seems to be no necessity nor reason for proceeding against the sureties of the guardian.
Plaintiff nonsuit.