The title to the estate of Sally Cummings passed to her executor, whose duty it was to administer it according to the provisions of the will. In attempting to perform his duty he paid to the defendant’s intestate certain moneys, and delivered to her certain chattels, as due to her under the will. She received and treated the money and chattels as her own. If the money had been paid to her to be paid by her in whole or in part to the plaintiffs, or either of them, as being due them or him from the executor, an action might be maintained against her, for money had and received, by the person or persons for whose benefit she received it, or, after her death, against her administrator. Mellen v. Whipple, 1 Gray, 317. So, too, if the defendant’s intestate, in consideration of the payment to her, had promised the plaintiffs to pay the legacies for which the executor was liable to them, and they had thereupon released the executor, and accepted her promise instead of his liability, an action could be maintained against her administrator. Neither of these cases governs the cases at bar. The defendant’s intestate received what she received as her own. The executor was not released from his obligations under the will. The estate was his to account for. The plaintiffs had their right of action against him for anything due them as legacies. Any overpayment of money or improper delivery of chattels which he may have made to the defendant’s intestate, under a mistake as to the interpretation of the will, was not a disposal of the estate which would go to his credit in the settlement of his account as executor, was not a payment of the money nor a delivery of the chattels of the plaintiffs, or any of them, and therefore did not place the defendant’s intestate, and does not place the defendant, in the position of having received money of the plaintiffs under such circumstances that the defendant is bound in equity and good conscience to pay it over to them.
As the judge, before whom the cases were tried in the Superior Court, erred in his ruling as to the law governing them, there must be New trials