On a motion for a rehearing, which was denied, the following opinion was filed:
*529 By the Court,
DixoN, O. J.The defendant’s conn-sel moves for a rebearing. He thinks we must overlooked the fourth point in his brief, that the assignment of the bond and mortgage to the plaintiff was void for the reason that one executor cannot transfer his interest in the estate to another. W e admit the correctness of the general doctrine that several executors are esteemed in law but as one person, representing the testator; that the acts done by one of them relating to the delivery, sale, payment, possession or release of the testator’s goods, are deemed the acts of all; and that if one grants or releases his interest in the estate to the other, nothing passes, because each was possessed before of the whole. 9 Conn., 84; 3 Bac. Abr. Title “Executors and Administrators” (D). But we think the doctrine inapplicable here, or that cases like this should constitute an exception. The plaintiff stood in the double relation of co-executor and residuary legatee. As executor, he held the estate in trust for the purposes of the will. As legatee, he had a vested interest in his own right, under the will, in the whole estate, subject to the payment of debts and other legacies. With the assent of his co-executors, we think it was competent for him to take title in his own right to a part or the whole of the residuum within the year and before final settlement of the estate. It is a well established rule that executors are not obliged to wait, but when the circumstances of the estate will permit, they may discharge legacies at once. 2 Williams on Executors, 1190. “I know of no case,” says Lord EldoN in Augustin vs. Martin, 1 Turner & Russell, 232, “ which prevents executors, if they choose, from paying legacies or handing over the residue within the year, and if it is clear, cúrrente anno, that the fund for the payment of debts and legacies is sufficient, there can be no inconvenience in so doing.” As an independent transfer from his co-executors, no title would have passed; but connected with the will and by virtue thereof, the plaintiff took the property in the capacity of residuary legatee. Otherwise he could never acquire title in his own right, for the principle contended for, if carried to its strict logical results, would prevent an assignment as well after as before a settle-*530jxiexit. It was a transaction between Squires and Cook as executors on tbe one side, and tbe plaintiff in bis individual capacity on tbe other. See Herald vs. Harper, 8 Blackf., 170.
Motion denied.