Page:Federal Reporter, 1st Series, Volume 10.djvu/83

PUIiLIAM V. PULLIAM. Tl �in name, he was such de facto; he was an attorney, an agent; he was a residuary legatee; he was a son, brother, and step-son; and the facts in this case show that his was the executive mind and he the controlling force in the management of this estate. Now, I do not think he can divest himself of all these relations to the parties and stand in the shoes of a mere crediter. His rights are the same, un- doubtedly; but the mon ey was in his hands, not as a crediter, but as agent and attorney, and he cannot, without being a crediter in fact, retain it. He must be held to account as agent and trustee, unless he bas shown that his appropriation of the money was rightful and lawful. His claim being barred, he could not excuse his liability to account to this executor, or to the plaintiff whose money he had in his hands as agent and attorney, by showing that he had applied it to the payment of a barred debt. And in this view the defence set up for him, of the statute of limitations, cannot avail him. He was, prier to the settlement, holding the money in his capacity of agent and attorney, in subordination to the rights ef all the parties, and not until the settlement did that relation change so that his possession became adverse either to the executor or this plaintiff. The bill was, therefore, filed in time to save any bar. Ner is this trustee eharaeter in any sense implied, se that it weuld be brought under tue operation of the statute, He was the agent and attorney by contract, and the fact that he was aise a crediter made him none the less so. �Indeed, on the facts ef this case, he might, I think, be held as principal executor. A person named as executor, who reneunces, will be liable, nevertheless, in equity as executor for such assots as he actually receives. 2 Williams, Ex'rs, (eth Am. Ed.) 1556, 1556 ; Lowry v. Fulton, 9 Sim. 116 ; S. C. 16 Eng. Ch. IIG. �There are seme qualiiications te this rule, but on examination they will be found te be iselated transactions, or those where the reneunc- ing executor, having complied with his agency fer the executor, is pursued for the latter's default, and not cases like this, where he has apprepriated the assets. Dove v. Everard, 1 Euss. & Mylne, 231. And it was decided by the supreme court of the United States that one dealing with an executor, knowing the facts, who possesses him- self ef the assets, can be made to refund them in a court of equity, and the assets may be follewed fer that purpose. Smith v. Ayer, 101 U. S. 320; 2 Williams, Ex'rs, (4th Am. Ed.) 800, 801; Tynvll v. Morris, 1 Dev. & Bat. Eq. 559, and note to 2d Ed. by Battle. �New, whether one charged as executor, notwithstanding his renun- ciation, is an express or implied trustee, in view of the statute of lim- ��� �