M'COY v. KENNEDY, 1 Miles 169

The opinion of the Court was delivered by Jones, J. The facts, in substance, are, that Andrew Kennedy bequeathed 2000 pounds to be paid (after the death of four annuitants) equally among such children of his two sisters as should attain the age of twenty-one years, or their lawful issue. The plaintiff is one of the persons entitled, and claims his share of 500 pounds, the part of the fund remaining, and which became due and distributable, according to the will, on the 31sl of July 1831. The defendant’s testator, Anthony Kennedy, w’as one of the executors of the will of Andrew Kennedy.

Anthony Kennedy devised to the plaintiff certain real estate in Lycoming county, for the recovery of which he had commenced an action of ejectment which was pending and undetermined at the time of his death. The plaintiff, as devisee of Anthony Kennedy, authorized proceedings for the purpose of recovering possession of the estate devised.

In the will of Anthony Kennedy there was a clause directing that all claims which either of his devisees should have or make against his estate for services or otherwise previous to his decease, shall become void and cancelled; but in the event of such claim being made, he charges the part of the estate devised to such claimant, with the payment thereof. Now the defendants contend that the claim of the plaintiff is within the meaning of this clause, and having elected to take the land devised to him, he has agreed to take it subject to the sum which he claims in tin's case.

The plaintiff contends that this is not a claim against the estate of Anthony Kennedy, but against a fund in his hand as trustee. We concur in the views of the plaintiff. The assets of the estate of a testator in the hands of his executor are not, in the popular or legal sense, a part of the executor’s estate. They are his for the purpose of protection and administration, but not for every purpose or intent. He cannot bequeath them ; they cannot be levied for his debt, even with his permission, but they may be levied for the debt of the testator. In chancery, the executor’s interest is purely fiduciary.

When an executor has, with his own money, paid debts to the value of the assets, he may with propriety convert the assets to his own use, but the reason is, because, having accounted for the value of the assets in the due course of administration, he is answerable for no more. By subrogation, he has the right of a creditor, and may, as executor, appropriate to his own use the identical assets in satisfaction of his claim.

Still, as it respect the surplus, and tire claims of the residuary legatee or the next of kin, he is a trustee, and the fund is not a part of his estate, but he is accountable for it in his character of trustee. Such was the situation of Anthony Kennedy at the time of the making of his will. Can we suppose then that he bad in view the claims against this fund by the phrase “ claims against my estate” 1 We think we should be doing violence to the popular as well as to the legal import of his language thus to understand it. This point is decisive of the question.

But it may be added, that the annuitant, upon whose life the 500 pounds were suspended, did not die till July 31st, 1831. Anthony Kennedy died the 19th of October 1828. The plaintiff therefore could make no lawful claim during the life of Anthony Kennedy ; but by express words the claim is limited to claims which shall be made for services or otherwise previously to his decease. It is obvious therefore that the testator bad in view claims accruing' in his lifetime, as well as claims which, supposing them to be well founded, were properly chargeable against his estate.

Upon these grounds we are of the opinion that judgment should be entered for the plaintiff upon the case stated. Steoud, J. having been of counsel in the case, took no

part in the judgment of the court. Judgment for the plaintiff.