Much of the discussion, in this case, has been upon the question whether the plaintiff was residuary legatee of John Tappan, and most of the claims in controversy depend upon the decision of that question. But that point we regard as having been settled when these parties were before this court at a former time. It was decided in Tappan v. Tappan, 4 Foster’s Rep. 400, that the plaintiff, in this action, was not made residuary legatee by the will of his father. Probably the fact stated in the auditor’s report, that the plaintiff is the only lineal heir of John Tappan, induced the probate court the more readily to recognize John W. Tappan as residuary legatee, and to attempt to take bonds from him accordingly. And it may be that such was the intention of the testator. The language of the will, however, does not so make him, and the clause having once undergone a judicial construction, we are content that it should so remain. The testator may have had reasons, satisfactory to his own mind, for not making his son residuary *68legatee of all his estate, even though as heir he would become possessed of the same property which he would have taken as residuary legatee. He may have thought it best that his estate should be more promptly settled by the return of an inventory and the payment and collection of debts, than by the filing of a bond to pay debts and legacies. But this is only matter of speculation. We know nothing of the case except what appears from the papers, and we treat this point as settled, because it has once been considered and passed upon by this court.
The plaintiff cannot, therefore, recover in this action, brought in his own individual name, (on the ground of being residuary legatee,) several of the sums specified in the auditor’s report.
Whether the giving of bond by a residuary legatee vests the choses in action of the testator so completely in the legatee, as to enable him to collect them in his own individual name, need not be determined. The plaintiff, not being residuary legatee, that question does not necessarily arise in this ease. It seems to have been settled, however, that by the giving of such bond by a residuary legatee, the property, in the estate vests in the legatee, and that the only security for the payment of prior debts and legacies must be derived from the bond. Batchelder, Admr. v. Russell & a., 10 N. H. Rep. 39; Tarbell & a. v. Whiting, 5 N. H. Rep. 63; Clark v. Tufts, 5 Pick. 337. In Tarbell v. Whiting, the court say, “ as soon as the executor had given bonds to the judge of probate, to pay the debts and legacies, all of the estate of the testator, not specifically devised to others, vested in the executor absolutely.”
But where an executor is not residuary legatee, and the estate is settled in the ordinary course, by returning an inventory, the personal property of the deceased is not distributed among the heirs till after the administrator or executor shall have settled his account in the probate court. It then, and not before, passes into the hands of the heirs, by de*69cree of the judge of probate. Rev. Stat. ch. 166, § 5. No such decree had been passed when this suit was instituted.
But should we hold the plaintiff to be residuary legatee by the appointment of the will, he was not such by the authority of the probate court, at least till April 2d, 1851, when he gave his new bond. The bond which he gave before clothed him with no power. This was decided in Tappan v. Tappan, 4 Foster’s Rep. 400, before cited; and this suit was commenced before the new bond was given, and before his legal appointment as executor.
And even could he hold the personal estate as heir, so as to enable him to collect the choses in action of the deceased, in his own name, after a settlement of his account as executor, without any decree of distribution, he still encounters another difficulty. He settled his account as executor, May 21, 1851, and this suit was instituted January 16,1851. He must recover according to the legal rights and liabilities of the parties existing at the time the action was commenced; and at that time he was not clothed with any legal power as executor, nor had he, as heir, any rights which he could then enforce against the defendant by a suit at law.
The clause of the statute referred to by the plaintiff’s counsel, (Rev. Stat. 161, § 10,) providing that any person interested in the estate of any one deceased, may commence an action as administrator, &c., does not apply to a case of this kind. This action was commenced by the plaintiff, individually, and he seeks to recover in his individual capacity, and not as administrator or executor. In order to come within the provisions of that statute, he should have commenced his suit as executor.
According to these views, which might be more enlarged upon if it were necessary, the plaintiff will be entitled to recover only the amount of the three notes fiíst named in the specification, being given directly to him in his individual capacity. The action was brought by him in that capacity, and the only undertaking by the defendant to him, as an *70individual, was upon these notes. All the other matters of the plaintiff’s claim, except the interest on the $3716,94, are mainly dependent upon the question of his being residuary legatee and executor, and cannot be recovered in this form of action.
As to the interest on the $3716,94, which remained unpaid at the time of the commencement of this suit, that was given directly to the plaintiff by the will, after the decease of the plaintiff’s mother, and was a legacy to him. But a legacy cannot be recovered till after demand made for the same. Payne v. Smith, 12 N. H. Rep. 34; Miles v. Boyden, 3 Pick. 213; Prescott v. Barker, 14 Mass. Rep. 428. And here was no demand shown.
It is unnecessary to decide, therefore, whether this interest can be recovered in this form of action ; but we would suggest a doubt whether, as these parties were co-trustees of the fund producing the interest, any action at common law can be maintained for it; and whether all proceedings in regard to this fund between these parties, or the interest-arising therefrom, must not be in equity. Without examining this point particularly, such is our impression.
With regard to the set off, that must be governed by the same principles that have been applied to the claims of the plaintiff. None of the matters growing out of the trustee fund, nor any of the charges connected with the estate of John Tappan, can be allowed in this action. Ail that the defendant is entitled to have set off are the three items of $25, $47,50 and $121,50, as allowed by the auditor. Judgment must, therefore, be entered for the plaintiff, for the amount of the three notes first described in the specification, with interest, deducting therefrom the three items of set-off, with interest on the same, as stated by the auditor.
The other maters in controversy between the parties must be the subject of future adjustment or litigation. They cannot be recovered or allowed in this action.