delivered the opinion of the Court. There seems to be no question that under the will of John Brown, Ann Brown was entitled to the income of all the personal property, left by her husband, after payment of debts and during her life.
If the notes had remained specifically on interest, she was entitled to that interest when collected. Here it was collected, and came into the hands of the defendant as the administrator de bonis non of the husband’s estate. The amount thus collected embraced all the interest which accrued on these notes, from the death of John Brown, to the death of Ann Brown. The debt when paid, embraced the interest which accrued during that period ; to that extent the defendant received it in trust for the widow, and payable to her personal representative.
This would seem very clear but for grounds taken in the defence.
1. Payment. Looking at the report critically and the offer of evidence, it might leave it open to doubt, whether the proof did not go to show that she had received of the former administrator, Starr, the amount of all the income, &c., though no receipt was given.
But we understand, especially from the grounds on which it has been argued, that Starr had delivered over to his mother, property which Starr could have derived only from the estate of the testator, to an amount equal to, or greater than such income, but not taken on one side, or delivered on the other, as satisfaction of her claims under the will. And the Court are of opinion, that this was not evidence of a payment.
Without the evidence further offered, of fraud and collusion, it would not be evidence from which a jury could infer *452payment, especially of income not then collected, and which was so situated as to leave it uncertain whether it would be collected.
No presumption could arise, that any property was delivered in discharge of this income, because it had not been collected in fact by,Starr, or by anybody till after Ann Brown’s death.
2. The delivery of the notes. This surrender of the notes to the administrator is no evidence of her intent to relinquish her claims to the interest. The administrator was the only party who could legally commence an action, either for the principal or interest, and he was. the party entitled to the custody of the notes.
3. Fraud, between Clement Starr and his mother, to defeat the rights of those claiming under the will. Such fraud,' if proved, would be no defence to this action. It does not show, that this demand originates in fraud, or that to allow this demand, would be to enforce and carry into effect such fraudulent purpose.
It is said, that this is one of the expedients originally contemplated by the fraudulent conspiracy, and to allow this action would promote it, because Clement Starr is residuary le gatee, and in effect the party suing in this action.
' But this is not a correct view of the subject. Probate is conclusive evidence of the validity of the will, and the capacity of the plaintiff, as the representative of the widow, his intestate. And besides, the present plaintiff is the represent ative of creditors as well as legatees, and this whole fund, for aught we can know, may be necessary to the payment of debts.
The plaintiff holds a representative character conferred on him by law, and as such is entitled to recover that portion of the amount collected by the defendant on Laird’s notes, which consisted of interest.
Judgment on the default.